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  CSPAN    Washington This Week    News/Business.  

    July 6, 2013
    10:00 - 2:00pm EDT  

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>> good evening. please take your seats. i name is paul howard and i am a senior fellow and director of manhattan institute's center for medical progress. i will be moderate drinker -- i will be a moderating our discussion this evening. prices and health care are opaque, byzantine, and only rarely visible before or after the fact to the people who are actually using the system, the patient. it varies widely for similar patients with similar conditions, not just in the same state or city but across the street from each other. we have brought together to american's latest -- leading health care policy advisers an analyst to explain why this so dysfunctional and what we can do about it.
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stephen kicked off the debate in a recent and widely read article for "time" magazine where he delved into the absurd hospital charge master, revealing a hospital pricing model as absurd, they charge the highest prices to the people who are least likely to pay them, the uninsured. he pointed out his point of view that the only force disciplining it is medicare, which still guarantees wide access and quality medical care for beneficiaries. we could bring more to the system and save patients a lot of heartache and expense. in rebuttal, he says our system is so dysfunctional because medicare distorts pricing in ways that produce perverse
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outcomes for payers. allow me to introduce both of our speakers before we begin. stephen designed a company to create a viable business model for journalism to flourish on line. he is a feature writer for magazines and trains journalist and founded brill's content magazine. he is a graduate of yale and yale law school. the chief executive officer of the game show network, seen in more than 7 5 million homes. he is a member of the board of
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records, an organization dedicated to hospital second transparency. is the author of how american healthcare killed my father and how we can fix it. he graduated from harvard university and holds a master's in history from new york university. to start our discussion this evening, i will ask both of our speakers to state in four-five minute what the central arguments are for why health care is so dysfunctional and
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whether or not medicare is the solution to this function. >> first of all, i still think the coin flip should be two out of three, but i will start anyway. [laughter] banks hit -- thanks to manhattan institute for hosting us tonight. it has been great fun to have this conversation with you. as many people in the audience know, 1965, medicare and medicaid were enacted. coincidentally in that year, the pcp 8 was introduced. it cost a mere $19,000, which was a tremendous amount of money in 1965. the average american spent about $200 on health care that year. let's fast-forward a bit. let's fast-forward to today. everybody in this room is carrying a box much smaller, much more powerful than that pcp 8. there are about 1.5 billion smart phones on earth, at an average cost of $235. they are 1/40 of the amount americans will spend on health
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care today. in 1965, you would have thought that computers were the most complex, opaque, and possible product you would ever imagine every person on earth carrying. in 1965, you would have seen health care as the most personal service on earth and in some ways the most important. it would have been inconceivable that the average person to carry something 1/40 cost of health care without read -- without all of us having got a computer science degrees. one of the things that happen was pointed out brilliantly by my counterpart in his article in time magazine. it is important to understand what is the most interesting thing about the article, it makes the point that these are prices, not's. they are what people charged for services.
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i am going to argue that health care seems to bring out the inner wonk in all of us. gets us to look at one aspect of health care and see that is so incredibly broken that we attribute too much to that particular thing. i will argue that when you step back and compare what has happened in health care over the last 50 years to what does happen with everything else, what you see is that the reason health care has done unbelievably expensive, while at the same time having inadequate or erratic access, terrible service, and enormous amount of sloppiness, and true complexity, so that the average person cannot understand the system at all. the most complex problem occurred became cheap, ubiquitous, easy-to-use and accessible.
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in computers, like every other business, you make more money by making it cheaper, better, easier to use, more accessible and more consumer friendly. in health care, you make more money by making it more expensive, by not controlling quality or quantity, and by under investing in service. i argue that medicare is central to that, that medicare has lower prices than private insurance, but it encourages excess care leading to medical harm, a completely undisciplined health care system that has undermined the health care economy. i argue this is not just a matter of money which is the way we often talk about it, but a matter of the quality of care, a type of care and reliability of care. i argue that in health care we fail to take advantage of the fundamental changes in care, technology, communication, and information to make health care better, cheaper, and ubiquitous,
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which was the real opportunity of the last five decades. >> thanks. i am not going to argue anything. i will just dispute the notion that the smartphone or a game the months that you carry on your hip is more complex than medical care. let's save that for another time. i also will argue that if you look at the various players and compare them, there are all kinds of easy comparisons. it cost the typical private health care insurance company $28 to practice it -- to process a claim. 's medicare -- by every comparison medicare is more efficient. the place i would like to start is how i got into this in the first place. contrary to your flattering
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introduction, i am hardly the four most analysts of health- care policy. my experience extends to this article. i approached it with no preconception, certainly no, preconceptions of the kind that i came out with. i guess i should confess, if i had any preconceptions they were sort of like the conclusion of reach when i wrote a book about the education reform movement, and the parallel there is public i was thinking when i went into this, maybe it's the unions that
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is the culprit in public education and maybe i could write an article that the manhattan institute would sure like when i wrote about education reform. the reason i fail this, the west decided to approach this is not from any kind of political perspective, but just by following the money. during the debate about the president's health care reform, what i was frustrated by was, the debate was all about who is going to pay the exorbitant cost of health care in the united states. how we shift the risk, what kind of insurance should there be, who is going to pay this very high cost?
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the parallel would be the debate we see all the time about, you have a terminal patient in the last six months of life, is it worth the million dollars to keep the patient alive for six months? i hear that debate and say how come it is a million dollars? but that was of $50,000 debate, it would be a different kind of debate. how did i approach it? i decided to follow the money and just take a bunch of bills and see why things cost so much. again, my suspicion was not where i came out. where i can not was that -- this is where i will happily agree with david -- there is no market. the mission of the institute's health care policy is to connect the marketplace to health care. guess what, that has not happened and is not going to happen. the reason it cannot happen is unlike everything else, except in certain instances, maybe plastic surgery, nobody really volunteers to be a customer. when they become a customer, nobody has the information and
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nobody has the leverage. you don't wake up one morning and say i think i will wander down to the emergency room and see what they have on sale today and check out the doctors and see what they are going to charge me. that is not happening. it is not a voluntary marketplace and that is not a marketplace by anybody's definition of the term. let's take the first bill that i found. here is a man who was diagnosed with non of -- non hodgkin's lymphoma. his wife decided that he needed to get to the m.d. anderson center in houston. her father had been there and had been treated very well there and prolong his life. it is a fabulous place with fabulous care. when they arrive, he had insurance, he had started a small business. he had a lot of skin in the game because his insurance limited
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him to coverage of to thousand dollars per day at the hospital. they will not even way you at m.d. anderson for $2,000. m.d. anderson said we don't take that entrance, you have to pay us in the event. just to decide what your treatment regimen is going to be is going to cost you $45,000, and they had to write a check for $45,000. then, your first transfusion is an additional $39,000. they had to use their credit card for $39,000. when the credit card did not go through, it was kept downstairs, sweating and nervous and upset. he had a tumor growing in his chest. everybody told him this, he needed this urgently, and he had to wait for the check to clear. he needed $80,000. in that bill was $13,700 charge
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for the transfusion. when i follow the money, i found out that m.d. anderson pays approximately $3,500 for that. the drug company that makes that drug, at cost them maybe $300. there was a charge of $77 for a box of's pads. when you all that money, and i do this with all the patients, there was a patient who had some chest pains and thought she was having a heart attack in stamford, connecticut. two hours and $21,000 later, she left the emergency room, her health insurance had lapsed, and it turns out when you follow the money in stamford connecticut, as with many other places around the country, the local hospital is the biggest employer, the most prosperous business.
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it takes in more revenue than the city of stanford takes in in all its taxes. what i found was this alternate universe of everybody except for the doctors and nurses making all kinds of money. the exceptions happen to be medicare. the problem of not that they were overpaying, the problem was, if anything, and i agree with david on this, a lot of medicare patients are underpaid because they have very little cost if they have a supplemental program, and therefore they just keep going to doctors, even if they don't really need to. i had one patient who had $350,000 worth of bills one year. a lot of it was for serious stuff.
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he had cancer, he had a heart attack. he had an eye exam and a bunion. because medicare with their discounts over $60. that is the kind of thing we have to correct. i do not look at this as a right or left issue. we have to look down the middle. there should be means testing for medicare. god knows there should be medical malpractice reform, which, if anything, will take away from hospitals the excuse of over testing people with cat scans and everything else at exorbitant rates. but medicare works. medicare pays the right prices, and anyone who thinks that hospitals lose money on medicare needs to just drive on any highway in florida and look at the billboards for all the ads for all hospitals that are advertising how they have expanded, they have new services. who are that advertising for in
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florida? they are advertising for medicare patients. they make money on medicare. medicare is deficient. it works. most of medicare is the private sector. medicare has 8000 private-sector employees who are contract the dow and maybe 700 other people who supervise it -- who are contract it out. >> just a couple of follow-up questions before we open it up to the fore. the big point of contention is how efficient is medicare? david, i will let you respond. >> there are a couple of things i would love to talk about but i am not sure we will have time. medicare does rely on private contractors and several private insurance companies. doesn't it seem strange that it
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would cost medicare so much less to contract out to have a claim filled, then the contractor would play it would pay for their own claim? -- then the contractor would pay for their own claim? i have been a contractor. i have run a business. the guy who is contracted to you always gets the worst deal. why is it that a bluecross would charge medicare so much less for processing a claim that it costs itself? what we need to understand about the health care economy is that medicare, medicaid, private insurance are fundamentally different payments that encourage different business models. steve and i are in complete agreement that hospitals make money on medicare patients. medicare has reported that hospitals lose money on medicare patients, inpatient and
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outpatient, for eight years in a row. that's go back to why the difference in processing costs are so different. what private insurers do is very careful analysis of claims. high-priced, low-volume. medicare is a public and political body that is supposed to show no bias. it pays for everything in an undiscriminating way it was implied very low prices. diagnosis creek, access treatment, and low prices. mcdonnell's makes tons of money on that model, and so do hospitals. the prices it pays look less, but the amount of treatment it pays for, from the point of view of private institution, it is a great business.
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>> first of all, just for the record, the head of medicare is the one who says the hospitals make money on medicare. that me tell you a story about the efficiency of insurance companies. in some ways i probably don't need to tell any of you about the efficiency of insurance companies, if you have ever tried to call one. let's take another example. one of the patient's side left out -- if you can believe it, this article is actually cut. one of the examples that i took out was the example of a doctor in new jersey. in 2010 he decided he wanted to go out of the aetna network and work on his own. so he changed his rates that
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day from $350 for a half-hour of treatment and he was working in the emergency room at hospital. he changed his rates from $350 to $10,000 for a half-hour of treatment. inflation, everything, rates go up. an aetna patient shows up in the emergency room with a respiratory illness, new money, and the patient ultimately died. the doctor billed aetna for that patient something like $410,000 over six weeks, and he build them something like $3 million over a 10-year period. aetna paid the bill. i am homophone with at the's lawyer and spokesman and
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explaining -- i am on the phone with aetna's lawyer trying to get his money back. if i submit a claim to aetna for $68, they send it back for $42, and i cannot get someone on the phone. how did you pay this doctor up $3 million? >> we cannot look it every claim. can you do something in your computer systems so that bell goes off in the office said it is more than $1,000 for a half- hour's time? we have not been able to do that yet. let me finish. i spent a lot of time that medicare, maybe one of the few reporters it was interested in digging into the bowels of the much maligned bureaucracy. they have terrific computer systems, all designed and run by
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the private sector, that aetna and the other insurance companies don't have, and they are really good at it. i am sorry, i know that sounds wrong. but they really do it well. i actually did the reporting, you didn't. >> medicare is $54 billion a year in improper payments. i can make a bank look really efficient by firing all the security guards, but i really need to put in the cost of robbers. >> where are you getting $54 billion? in fairness, it is medicare and medicaid. >> it is one out of every $6 or $7.
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>> the more important point, i am not saying medicare is inefficient compared to private insurance. your. is there more efficient than private insurance. my point is, these are different businesses. medicare is in the business of saying yes to everything. there are no real limits on care. medicare has said we will help pay for all healthcare people need. it has caused a lot of massive inflation in need. the idea that they officially pay for excess care is inefficient in its face. a customer service is terrible. their control prices is terrible. the private insurance business just marks of the cost of care and sells it to private companies. >> here is where we can agree. i agree with you. for supplemental insurance and
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medicare, you cannot sell insurance to people who are above the poverty level that will worry about their excess care. second, you could argue that there are all kinds of abuse in payments. let's put this in perspective. medicare has a zillion different strike forces, inspector general's. if you talk to honest hospitals, honest doctors, they will say medicare can be a big pain when they do an audit. you will get all kinds of abuse, but the solution that i thought i heard you say when we were on the television show recently was that people should just have
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total skin in the game. if i have to pay for everything myself, i would be much more efficient about it. that does not work because i don't know what i am paying for. i have no idea and no leverage in the marketplace. getting rid of medicare is not going to solve many problems. >> i hear you both agreeing that hospitals are making tremendous amounts of money on medicare. fair enough? >> no, not tremendous amounts. that make their costs and a little bit more. >> drug companies make a lot of money on medicare. >> congress has not allow medicare to negotiate the price of medical devices or drug. some go back to the leaders in congress, republicans and democrats, and ask them why that is. >> it is a political football.
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it is extraordinarily hard for congress to be hands off or let the right forces operate. >> it depends on what football you prefer. >> i can answer that. the more we have our health care and to track system determined incentives, the more they will be perverse. they will produce way to much care. i was with a group of health care economist at dinner the other night. the question was if you don't have medicare, would we still have general hospitals? they exist because medicare part >> we general hospitals.
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can talk about that. we are all on our own. how our system works. this is about how our system works. i'm getting a dozen of these are day. even though we had insurance through my wife's employer, when we read your article, we had a fear we had the same billing problems with medical bills than when my wife gave earth.
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we made extra sure before we had the baby the hospital we were using accepted our insurance. despite our best efforts, such a problem has developed. when my wife was in labor, we were built. every doctor and nurse in the hospital. it did not occur to us we would be liable for any of the out-of- pocket expenses. we had no idea what the bill would be. since my wife was in intense pain, we could not have asked a question about the participation, even if we had wanted to. you can imagine our shock when we found out the doctor did not anticipate our health insurance and the bill would be $3400. you want to leave people on their own? >> is there a customer --
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>> that is the point. that is the symptom, not the cause. i got a bill for an independent contractor for a service for discharge for the hospital. a hospital swears it has nothing to do with the bill. everyone in the hotel business would love to do that. we cannot. no one can except in healthcare healthcare. >> why, because you agreed to go to a hotel. >> on my television network, you would have seen ads for cancer centers. getting cancer is not voluntary. what has changed in healthcare, although we never talk about it when we have political debates, is that most healthcare is now the result of a deliberate choice by the patient. [indiscernible] we view it as a cure.
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[laughter] three out of four studies confirm it. [laughter] one the reality is, we talk about all healthcare the way we talk about a tire blown out on a highway. there is nothing you can do. your examples are often that. we know people who have been through that. where most of the money is being spent, where all of the growth is, is chronic condition management, long-term treatment of things such as cancer, and various replacements we all have. those all involved a decision a customer makes. for hundreds of years, it had to be centrally controlled. healthcare has changed. it is not what it was 50 years ago. this is the biggest industry in the country and the developed world. it is something we use all the
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time. because you might have a blowout on the highway, to take care of that is absurd. if any of you have had a tire blowout on the highway, a guy does not say, let me see before you blowout your tire. they do it because they can get away with it. >> the ads you have all seen, they are intriguing. a spotlight one thing you said. that is a high profit disease. the drugs cost so much money, everybody is on that gravy train, except the doctors. i think the fact they present information, and if you go to their website, they talk about survival rates.
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it caused hospitals to list survival rates. that is good. it is naive to think for someone who has just been told they have cancer, is going to make the same kinds of decisions you will make in a half hour of what restaurant you eat at. you cannot make that informed decision. i am not against those kinds of choices. >> that is the problem. you are right. there is no one else to make that choice. this idea of health system, someone who calls you up and says, i am concerned about that spot on your i let's check about it we are all on our own. none of us are in the best decision to make those decisions when we are in a tough diagnosis. the problem is, no one else is making the decision. someone else is paying for it.
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that has meant not just this enormous amount of money to fund it. one million to $2 million per person. it is also the lack of a healthcare system that treats us, as opposed to the large bureaucracies that are the customers. we do not make great decision. we make terrible decisions about everything. the way the economy functions -- >> assuming cancer treatment and the network, they are not getting in the way of the decision. they are just providing people with economic security that they
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can make those decisions and not have to make them based on cost. the same thing the cancer treatment centers in america as they are -- >> the only potentially deceptive thing, you may not know it will cost you the same thing as the philadelphia place. >> economic security is another illusion of the healthcare system. >> you have not mentioned the tax treatment. backside that we agree on that. >> i bet we do. it pays people salaries just shy of a utility infield for the yankees in the bronx.
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i had this debate and mentioned $197 million. he said, well, they do all these wonderful things to help with the clinics and provide all the care and they do this and do that. they said, that is right. when they get finished doing that, they still have $197 million. they should be taxed. their prices should be controlled. something needs to interfere. >> i think it is important. when i talk about the fundamental incentives of the healthcare system, they are for- profit or not-for-profit. tonight, they are the same. they are the same as any sort. >> that is a way in which the
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tax code spends a lot of money on our behalf but does not give up the ability to discipline in any sense. let me just open the floor to questions. please just wait for the microphone to come to you and then please state your name and affiliation. thank you. in the back there. please stand up, too. >> i am a member of this group. i do not understand something. when did being a doctor stop being a profession that --
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profession and start being a business? they wanted to have a presumably steady income. now, we have doctors who own portions of a hospital, the radiology lab, this and that. they are in business. it seems to be -- that is part of the problem. that is to say, doctors do not they are not the ones getting rich here. i think it is completely wrong. >> it is completely right. thank you. >> in small areas, in country situations, it is a problem. there is still, if there is anybody, a country doctor not making much money. in urban centers, i do not think that is true. >> i am counting on my fingers the numbers of doctors my family has been to in the last year or so. it is probably a dozen.
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none of them is a consultant for a drug company or at a clinic. the vast majority of doctors, as i point out in the article, and the nurses, they are the only ones who do not live in this alternate universe of being on the gravy train the rest of the country has not enjoyed for the last decade. it is just a fact. on my list of priorities, i would care more the regional sales manager is making a half- million million dollars a year than i would the doctors are making half $1 million zero or a million dollars a year. >> that is part of the pricing system? >> that is crucial. i talked before about how medicare's choices affect the practices of medicine, not just the cost. one of the most important things medicare has done is by underpricing the services of general practitioners relative to procedures.
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it has caused over two generations to disappear. this 6000 left in the country. 6000. you may have thought, medicare expansion going from 500 billion, that is serving sieges seniors. one of the reasons medicare prefers procedures and tests and major operations is because it is easier to justify spending money on them then somebody else's time. what do we have among seniors now? less than one third of appointments seniors have would doctors now of pediatric -- two thirds are now for specialists describing specific procedures. i want to be careful not to talk about excess care as a matter of money.
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lance published a great study a year ago looking at every medicare patient at the year of their death. what they discovered was shocking to almost anybody in this field. one out of every three medicare beneficiaries -- one out of every 590-year-olds had surgeries. most doctors will tell you there is almost no reason for a 90- year-old to ever have surgery. when i talk about problems in medicare, it is not really about money that the type of care being driven for our seniors. test rich, diagnosis risk -- risk, and what really matters is we are subjecting our seniors to an enormous amount of care that does them harm. >> i agree completely the incentives for general practitioners and doctors are
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just completely reversed. i will add in the debate over the obama care reform, there was an effort to add various measures which would allow medicare to opine over whether someone with terminal cancer should have hip replacement a month before they would die. that became part of the betsy mccoy death panel and everybody just ran for the hills rather than try to pursue that form. >> old people should depend on medicare. they like that program.
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he will not get rid of it realistically. if aetna tried to do that, they would go after that, too. >> a different point there in terms of how the politics get in. it is almost impossible -- >> not quite. to take an example, there are state laws that mimic medicare. medicare says if the drug is fda approved -- congress says if the job is fda approved, they have to pay for it. various state laws mimic it, especially when it comes to cancer drugs. even if one drug cost eight times as much of another drug,
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to be licensed to sell insurance, private insurance, in that state, you have to pay for drugs. i do not think you get rid of the politics of this if you get rid of medicare. >> i say we cannot get rid of congress. [laughter] >> that is right. what i am proposing is not that we get rid of government supports. the difference is, by creating more of a market in routine services, we create other incentives. we try to balance it. the reality is everything you are saying is absolutely right. my point is, we have one disease. dialysis is regarded as the most corrupt, poorest quality, highest cost, most complex, and ultimately the most dangerous part of our healthcare system.
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the ceo is one of the -- my point is not that we should get rid of all of governments involvement in healthcare. my point is, let's turn the safety net into a safety net. what we have now governs the medical economy in such a way that creates perverse incentives for stuff. people are suffering. we can look at low prices and say, it is about low prices. not if care is genuinely interest. people are taking -- not if people are taking too many drugs. but if they are doing it in an environment -- i saw it happen to my father, the type of sloppiness i would not expect anywhere else in our economy. since i have joined the board, what i am aware of is that they do not have the right discipline. they do not have the right
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accountability. i would like them to balance that. i do not think it is either or. we are just entertainers at the end of the day. [laughter] class keep entertaining the crowd. any other questions? >> the guy with the google glasses? >> are you sure you can interrupt yourself and talk to us? [laughter] [indiscernible] [laughter] >> one of the things [indiscernible] dealing with medicare, this results in the best doctors. just ask their patients. does this not cause us to end up
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having giant hospitals, the hospitals doing a lot of medicare [indiscernible] i am trying to get this in the right spot. are doing well because [indiscernible] other hospitals do well because they can handle the insurance system well. doctors can handle the insurance. >> hospitals do well because they do especially well in places like connecticut where they are the only game in town. then they tell the insurance company what they will pay. >> there are still economies of scale in healthcare. one is leveraging in insurance. with medicare it has a single
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diagnosis. 65% percent of hospitals have an exemption to it -- an exception to it. another 25% are completely. >> they are really not material. >> they are material enough to lobby heavily. the second economy scale is very important. which is administrative. if you look at i.t. and healthcare, that is the worst of any consumer facing industry. they invested very heavily in billing technology. the major economy scale and administration in a hospital is dealing with regulation, insurers, and payment. general hospital's long ago stopped being the best way to treat people. yet, their political power and enormous advantages in the administration have prevented small, specialized institutions
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from competing effectively. the average doctor spends 20% of his time in paperwork. you're taking the most expensive and value part of the system and turn them into insurance clerks. >> they are happy to sell their practices to hospitals so hospitals take that over. >> next 10 in -- next able in the back? -- next table in the back? >> thank you for putting out doctors are not the one making money on drugs. i am an oncologist. >> you get a little bit of a market. >> you are actually losing money. people in private practice is a much more because hospitals are getting massive discounts and that is why they are able to buy up practices. it is much more expensive than the hospitals. people who think doctors make so much money, residents age 31 and 32 coming out with $200,000 in debt and getting about 130 or 140. i would worry about who is taking care of us in the future. that is my big worry now.
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>> question, explain to me why the choir got the salary he got when he required -- retired. -- why maguire got the salary got when he retired. he still want up with about 1 million and one half dollars. that is one of the reasons we have art of our healthcare cost. everyone tangential -- >> there is no competitive healthcare market in this country right now. there is not likely to be. you will see above market salaries. hospitals are good at things they do a lot of. depending where you are, if your hospital does a lot of specific procedures, it's success is
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greater. when you look at the world hospitals protected by congress, you may have seen this study in health affairs two months ago. for most conditions, they do so few procedures in a hospital, you are better off flying to a city. it is cheaper. general hospitals do not exist because they are good at everything. they exist because they are general. they are like big department stores. they not so good at things they do not do a lot of.
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we would be much better off having the type of competitive advertising leaves see in other things. we do not have it in hospitals. it is unfortunate because the presumption because it is big and does everything, it is the right place to have my hip replacement or my bypass or what have you is not a presumption that is met by the evidence. most consumers do not know that, just like they do not know there are massive differences between the safety records. [indiscernible] >> sure. the political thing for me, it is something we agree on, the political influences major in these things. part of my argument for moving more dollars through individuals is to move some of it away from political decision-making. if you look at something like dialysis, you see the influence of political contribution and how medicare pays for dialysis. >> i would add if you have much more transparency, it is probably the only way you will fight the fact the healthcare
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industry spends something like 3.5 times what the much bear military complex lobbies in washington, which is why nothing we are talking about a peer will change. unless you get people really angry and the way to get them angry is to give them information, to tell them there is a $77 charge. this hospital is doing a lousy job, this hospital advertises, those are the kinds of things to get people aware of this so they can counteract maybe what the forces are in washington. >> we know in new york -- one last short question. the young lady in the back? >> two really short questions. i just want to make sure i understand what the solution is.
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are we talking single-payer, all payer employers driving the change to high deductible plans and abandoning -- demanding more transparency? is there any country in the world that has the model -- >> don't say [indiscernible] there is something wrong about that. [laughter] he will say singapore. they point to finland to change the american education system. anyway, i purposely did not expound on a master solution. i do think what you need to restore or create israel leverage in the market place. part of that is the market has to intervene. you can have all the transparency you want. when you tell that cancer patient, who is waiting and
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sweating, to say, the transfusion costs over $13,000 and only costs the hospital less than one fourth of that and it costs the drug company a couple hundred dollars. you can have all the transparency in the world, but he needs the drug. this government, this country, some way or another, has to intervene in that part of the marketplace the way every other country in the world does. there are all kinds of possible solutions, but they all involve the same thing, which is a lot of transparency, and some kind of intervention because you have to ignore its the fact this is not a free market -- to acknowledge the fact this is not a free-market. >> i am glad we are agreeing.
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we need to take advantage of what healthcare can do in this country. our healthcare will get far more personalized, far more responsive, far more integrated. the amount of care spent on the urgent cases declines every year. healthcare will be our major consumer industry. the question is how do we organized. right now, we are organizing it the way we first thought of it in the late 19th century. your house burning down. right now, under the guise of home ownership, home insurance, we are paying for, what happens if your house burns down, all of the utility bills, and your furniture going out of style. the problem is not, that makes us that consumers.
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it makes the industry that providers. consumers do not drive any consumer driven industry. providers do. the providers come out with a new phone, a new car, a new this every month and try to convince you to buy it. we found a discount m.r.i. in my family by calling around and asking. in every other industry, they find you. that is why we are in the media business. so they can find you. healthcare will look more and more like most industries in terms of what it can do but we continue to structure it in a way that is old-fashioned. one of the reasons is that we look at the rest of the world and say, look what they are doing. how come the europeans can get similar, better mortality data on less spending? one of the
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ways to get less spending is by spending less. we are never going to do that in this country. congress has never been able to do it. everything is subsidized one way or another. another reality of america is healthcare spending has nothing to do with mortality at this point. mortality drivers are diet, drug use, smoking, alcohol, income, and education. >> and playing too many video games. [laughter] >> which my kids argue will increase their lifespan but it is a shortening mine. [laughter] we say, they are doing so much better than that. they are not. no country is confident on their ability to handle the growth of health-care spending that comes out of the statement of, we will pay for everything you need, cause the industry response to the net -- to the statement, the amount of healthcare we need will get bigger and bigger as we get healthier and healthier. guess what. there is no way to fund or discipline that. i like symbol for -- singapore. i like it for one reason. they did a lot of things that would be hard here. it is the only country on earth
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that does one thing very differently. it separates out the role of under and payer. we have forgotten they are separate. an insurer can write you a check and you can be the payer. in singapore, you are the consumer even if the government is paying 95% of the bill. you always make the purchase decisions. they found the affect to be extraordinary. they have healthcare just like everyone else in the world. perfectly good. a lot less demand and lower prices. >> you left out the fact they have price controls. >> i did not. there are tons of things singapore does we would have a hard time doing here. we will never have control with congress. it is not an option. it will never happen. what can happen here? this is a country where we are leaving things to consumers constantly. i am not going to -- for 100% of the market. let's take 1 million and one half dollars and put half of it in a catastrophic care system that is national, universal, cradle-to-grave, and that the
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other half go back to healthcare. we will see in industry where the providers have different motivations. steve mentioned cosmetic surgery. anything not touched by health insurance, including carefree documented. basic, primary, documented, operates on a competitive cash market. it has nothing to do with the type of care. so what i'm calling for is understanding what most of our care is. treating all health care as one thing recognize some is catastrophic the cases steve really so extraordinarily outlined. where we need intervention, we need insurance. but much isn't. and if we build a whole system based on the worst-case, we are
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going to have more of what we have now. >> i guess where i disagree is a first the definition of catastrophic that woman in stanford who had chest pains and went to the emergency because she thought it might be a heart attack, wasn't a heart attack, you want to put her on her own. another patient who fell down in her backyard and broke her nose and had some cuts on her face, you want to put her on her own. i think again that even if it's elective knee surgery that there have to be controls because you do not have the kind of free market that you have for lasik surgery or -- >> we don't have it -- we have it in undocumented care. >> well. >> it's very price sensitive. >> if you ask the people who provide that health care in east l.a. they will be the first to tell you that those people are under served, way
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underserved and they're still driven deeper into poverty as low as those prices are and they're not getting the equivalent health care that other people would get. >> first of all i don't want to put people on their own. the average working person in this country who has a family and is fortunate enough to have health insurance is putting about 25 to $30,000 into our health care system directly through taxes and through their employer shared premiums. if a catastrophic care system costs 3, 4,000 a person, that means that person is on their own on $10,000 a year. we've got to get some idea of the scope of money. this whole thing is a bit of a shell game. the money we'll spend on health care didn't come from somebody else. 350 million people aren't all being paid for by somebody else. we're all paying for it. we'll spend $850 billion a year subsidizing medicare and paying for medicaid.
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do you know how much that is? you could give 100 million people $8,500 a dwreer for their care. that's 34,000 for a family of four. when you build the system that's inefficient on price, inefficient on administration, inefficient on volume, you're all paying for it. >> you left out the fact that the people who are the beneficiaries of medicare have medical needs because of, i'm sure you know their age, that puts them four, five, six times above the average. so you're comparing apples to oranges. >> i'm happy to talk about that. >> let's table this discussion. we can't give both of you the last word but let's let the audience give you an applause. >> today on c-span, national
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religious organizations talk about health care nand dates and the affordable care act. then the legal and religious issues from the u.s. supreme court's ruling on same sex marriage case this last term. later, a review of the major decisions from the supreme ourt's 2012-2013 term. the new president of the american medical association is our guest this week on "newsmakers." she talks about implementing the affordable care act, the doctor shortage and her priorities as the association's president. watch "newsmakers" sunday at 10:00 a.m. and 6:00 p.m. eastern on c-span. >> making the transition from journalism to books is exhilarating and completely overwhelming and frightening. but wonderful. >> why did you make that choice? >> i made that choice -- i had long wanted to be working on a book just because the freedom
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that it allows you to dive into a topic and lose yourself and go off on tangents and have enough time to really eek plore it fully -- explore it fully. >> taboo sciences, living in space, the afterlife. mary roach will take your calls in-depth three hours live sunday at noon eastern on book tv. next, leaders of the southern baptist convention, the catholic church and other national religious organizations spoke to reporters about mandates in the new health care law concerning contra veptive services. just over 35 minutes. good afternoon.
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i want to thank you for being here today as we are standing together for religious freedom. this important open letter to all americans about our united efforts for religious liberty. our panelists reflect people of different religions who share a common concern, fro tex of conscience and upholding the first amendment's guarantee that americans can live according to their religious principles. our speakers are dr. russ el moore president of the elicks and religious liberty commission of the southern baptist convention, the chbishop of baltimore, professor of sociology at fran sis kn university of ohio, and associate professor at liberty university school of law and member of the national hispanic
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christian leadership conferences board of directors. each panelist will speak a few words and then we'll open the program to questions. dr. moor. >> thank you. y name is russell moore. our first freedom of religious liberty is rarely challenged with a sudden shock and awe tactic. instead, from the very beginning such incursions on religious liberty happen on this country from the pen of a bureaucrat rather than from the barrel of a tank. my baptist forebearers objected in the post revolutionary era to the state licensing preachers to preach the gospel and this was the government said simply a matter of paperwork. a stite license though was more than just a fee and a piece of paper. it was about a government that had overstepped its bounds. whatever our challenges, america has always returned back to the founding principles
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of this new republic. that religious liberty and freedom of conscience are not government grants handed out to the deserving in the minds of the government. religious liberty and freedom of conscience are inalienable rights granted by the creator and these natural rights belong to all persons not just those who are in the majority of the ambient culture. americans are planning to gather this week for cookouts and pick nicks and fire works to mark yet another independence day. we, a broad coalition of religious leaders, mark this week by calling our government back to our first freedom. the free exeer size of religions for all personses. the health and human services contraceptive mandate has catalyzed this coalition, this mandate imposes heavy fines and legal penalties on organizations and businesses and individuals which do not participate in the provision of contra septives and
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abortion-causing drugs. the issue here is not contraception or abortion. we wouldn't all agree on those questions ourselves in this coalition. at issue is the callous disregard our government has shown for the freedom of americans to exercise their religious convictions. we love and respect our president, president obama, and our national leaders, and we have appealed as citizens for the administration to respect conscience rights. in response, our government has given us word games and accounting tricks. that amount to really the same mandate repeated over and over and over again. we're not so easily hypnotized by bureaucratic parlor tricks. our government has traded the free exercise of religious in this case as if it were a tattered house standing in the way of a government construction of a railroad there to be bought off or plowed out of the way in the name of progress. we dissent from that.
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as a preacher of the gospel of jesus christ, sole liberty for me is more than a political principle. i believe as my lord commands that we should render unto caesar that which belongs to caesar, but the conscience does not bear the image of caesar and cannot be swept into the federal treasury by government fee yat. we cannot accept the theology lesson the government has sought to teach us that religion is simply a matter of what happens during the scheduled times of our worship services and is left there in the foyer during the rest of the week. our religious convictions aren't reduced to simply the opinions we hide in our hearts or sing in our hymns. our religious convictions inform the way we live. we support freedom of conscience not only for ourselves but for all persons, one of the reasons we oppose this sort of incursion on the free exercise of religion is that we want neath tore be oppressed nor to oppress
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others. we do not ask the government to bless our convictions or impose them on others. we simply ask the government not to set itself up as lord of our consciences. many americans will disagree with us heartly about the thippings we believe. but even americans of no religious faith at all have an interest in the protection of these liberties. do we really want the sort of civil society in which the consciences of the people are so easily swept aside by government action? if the federal government can force organizations and businesses to pave over their own consciences, to choose between being believers and being citizens, what will stop the government from imposing its will on your conscience next? so we call on the department of health and human services to at the very least expand conscience protections under the mandate to cover any organization or individual with religious or moral objections to covering, providing for, or
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enabling access to the mandated drugs and services. we ask congress to prevent such abuses from happening in the future. and we call on americans to remember the great costs this country has endured in order to achieve religious liberty and freedom of conscience in order that we might continue these blood-bought rights for ourselves and our posterity. the archbishop will please forgive me if i quote martin luther who stired no little controversy between our traditions some time ago but nonetheless i think he and i can agree on his words as they apply to our government and to its audacity in curtailing religious freedom in this case, to go against conscience is neither right nor safe here we stand we can do no other. god help us. thank you. >> thank you dr. moore. arsh bishop. >> thank you very much.
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let me say for the record that your quoteation from martin luther is happily accepted. so thank you. you know, we're grateful to see so many leaders of other denominations and faiths, including southern baptist, the church of jesus christ of later day saints, the national hispanic christian leadership conference, the international society for christian of conscienceness, and orthodox christian and jewish leaders as well as leaders of faith-based and civil rights organizations, all come together to sign a statement supporting religious freedom. the letter itself states that -- and i quote -- many of the signatories on this letter do not hold doctrinal objections
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to the use of contraception. yet we stand united in protest to this mandate recognizing the encroachment on the conscience of our troubled citizens. as the catholic bishops have said from the beginning, the underlying issue with the hhs mandate is not about any specific teaching. in fact, other signatories on the letter do not share our views on contraception. and probably disagree with us in many other ways. but they understand the core religious freedom issues at stake here. it is fitting that the statement has been released during the fort knight for freedom, which has been embraced by catholics and people of many faiths as a show of great respect for religious
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freedom in the two-week period that leads up to this thursday independence day. it is also fitting that the final rule on the hhs was issued on the forte night since we are especially attentive to religious freedom at this time. sadly, the mandate divides our separate three camps. houses of worship, accommodated religious institutions on the other and? addition to that for-profit entities run by religious believers. we in the catholic church have never seen such a distinction between what we do within the walls of a church and how we serve our neighbors. the faith in which we worship on sunday is the very same
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faith by which we act in the world the other six days of the week. under the new finalized rule, for-profit institutions still receive no relief or accommodation at all except for the relief that many of them have been able to retain so far in the courts by way of preliminary injunctions or temporary restraining orders against the mandates. as cardinal dolen stated on friday, we appreciate the extension of the effective date by five months. meaning that the effective date of the mandate for accommodated religious nonprofit stitutions is now january 1, 2014. also as noted on friday, the united states conference of
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catholic bishops is still analyzing the specifics of the accommodation. this is a 110-page rule and of course it's complex. it involves reviewing the intricacies of health insurance law. the usccb plans to issue a more substantive statement on the final rule once its analysis has been completed. itself he outset, hhs has noted that the final rule is, and i quote, very similar to its february 2013 proposal. which the usccb commented on in detail on march 20. in addition to this ongoing analysis, the usccb will continue to seek relief from the courts and from the
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congress as appropriate. notably just recently, senators deb fisher and tom cobern introduced legislation in the u.s. senate called the health care conscience rights act, which would provide a legislative fix to the mandate for those who object because of moral or religious convictions. senate bill 204 is the identical companion bill to hr 940, legislation introduced in the house earlier this year by congresswoman diane black and others. once again, we are pleased to stand by so many partners with other faith traditions in raising continued awareness over religious liberty concerns and the hhs mandate.
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those present today and the statement we have signed underscores that this is about religious freedom, the religious freedom enjoyed by people of all faiths and of no faith at all. something that we all hold dear as americans and something most worthy of preserving and defending. thank you very much. >> thank you. and now dr. hendershot. an hendershot and associate who spent 20 years working in religious colleges teaching sociology. i was thrilled to be able to do that over these 20 years because i knew that my conscience rights would always be respected. as a pro-life catholic, i was happy to be able to teach in an environment where i would not
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have to compromise my beliefs to supervise student internships in places like planned parenthood or other abortion providers. i knew that i would never be asked to compromise my beliefs. unfortunate, the obama administration's health and human services mandate on preventative services now threatens those very protections. the hhs mandate requires that all organizations, including religious ones like the catholic colleges that i have taught in and currently teach in, provide insurance coverage that includes abortion inducing drugs, extra seppings and sterlization procedures. this will require me as a faithful catholic to purchase insurance that my church teaches is seriously immoral. this forces me and my employer to pay for or facilitate access to products to services that
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are in opposition to our beliefs. the mandate also allows the minor children of employees of accommodated religious institutions like my college to avail themselves of contraceptive sterlization or abortive drugs without their parents knowledge. because such information will appear -- will not appear on parents' claim statements at the end of each month. last year my current employer, became the first university in the country to drop its requirement for student health insurance due to moral and economic concerns connected to the hhs mandate. the then president of the university submitted a public stamente protesting the new guidelines from hhs to force catholic institutions to choose between following their faith
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or providing health coverage in their employee and student health plans. in his statement he wrote that by making this insurance coverage mandatory, our government has violated the conscience of people of faith and infringed on our rights to practice our religious blitches. in -- beliefs. in may of 2012 they sued the overnment saying that it was a grave threat to their ability to teach from the heart of the church. t that time, fran sis kn was one of 12 law suits filed by organizations including the university of notre dame and other catholic colleges and universities. there are now over 60 total lawsuits against the mandate half brought by family-owned businesses and half by religious institutions. fortunate, of those cases on behalf of family businesses
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that have received early rulings, a vast majority, almost 80% of plaintiffs have been awarded temporary halingts to the mandate. unfortunately, though, on the nonprofit side many of the cases including fran sis kn university's case have been dismissed without prejudice because the courts have claimed that the religious institutions have not yet been injured by the mandate. those about to work on campuses or other institutions disagree. we've already been injured by this unjust mandate because our constitutional right to religious freedom has already been compromised. the refusal by the obama administration to classify institutions as religious employers has already compromised our religious rights. there is every indication this will escalate. refusing to count other catholic colleges and christian colleges as religious employers , the state can target us as
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they have done to catholic adoption agencies that won't place children with same-sex couples. unless catholic colleges and universities and christian colleges are given some assurance that their religious liberty will be protected the threats will continue. rejecting our claims of religious liberty it is likely that in a misguided attempt to protect women's rights we will will forced to facilitate our students' participation in things like student i wantships at the clinics of abortion providers. similarly catholic colleges and universities may be forced to accept as leaders those who openly disavow the catholic faith. or hoss tile to the catholic faith. analogous situations have arisen. but if wre protest on religious liberty grounds we will be told yet again that we have no right to protest because we are not religious institutions. a current obama appointee to
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the eeoc recently wrote that when it came to gay rights or women's rights she was having a hard time coming up in any case in which religious liberty should win. we are already at a place where the establishment clause has shifted from keeping the government from entangling itself to a justification to anti-religious secularism of pushing of religion out of the public square and this threatens people of all faith lts. > and our final speaker is dr. mantea. >> according to the first amendment of the american constitution, congress shall make no law respecteding an establishment of religion or prohibitting the free exercise thereof. religious freedom is one of our most important civil rights. however, it is not only a fundamental civil right in the united states. it is also a globally
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recognized universal and fundamental norm of international human rights law. act 18 says everyone has the right to freedom of thought, conscience, and religion. these rights include freedom to change his religion or belief and freedom either alone or in community with others and in public or private to manifest his religion or belief in teaching practice worship and observance. the right to religious freedom has not only been one of the cornerstones of the american legal system, it has also been a priority of the united states foreign policy to promote and defend this fundamental human rights around the world. for example, during the cold war the defense of international religious freedom enabled the united states to effectively show the importance of respect for democracy and human rights.
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despite the end of the cold war, violations of religious freedom around the world are still widespread. totalitarian regimes continue to undermine the religious freedom in many regions in many countries. however, there are other forms of violations of religious freedom. although they are not as brutal and systematic as the totalitarian regimes, they are also unjust and they should not happen. this is the case of the hhs mandate which forces religious believers to make a choice between obeying the law and violating deeply held religious beliefs or obeying fundamental religious and moral norms and disobeying the government that mandates. american religious institutions, family-owned businesses, and private persons should not be forced to pay for drugs and services which violate their deeply held
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convictions. american religious institutions, family-owned businesses and individuals should not pay fines to uphold their religious ideas. violations of religious freedom in the united states and athis is especially the case when they involve the protection of innocent human life such as in the case of the hhs mandate which includes abortion-inducing drugs. a government which undermines religious freedom norms in its own jurisdiction cannot lead the cause of religious freedom global lifment it is time to restore the great american tradition of respect for religious freedom as a fundamental civil right. if this happens, then america will once again be able to become a leader in the global cause for the defense of religious freedoms at the
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universal and human rights. >> thank you. >> we are now open to questions. if you have a question, please raise your hand. when you are called upon, please speak into the microphone, state your name, your agency, and to whom you are addressing your question and finally your question. >> michael winters. two part for the arsh bishop. will compliance with the mandate be compolicity with evil and do you anticipate closing mandates? why is so much money and time being spent on this came pain? and for reverend moore, many have religious based conscience objections to the civil rights act and desegregation laws. why is this different especially regarding private for-provet employers? >> first of all, i think we have to recognize what the
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mandate does on a national level that is different than what i've seen before. and that is to create a sort of three-tiered religious system. you've got exempt houses of rship, you have accommodated institutions, and you have private for-profit conscience shs individual business owners. that state of affairs did not exist. that state of affairs sets up a new situation for religion in the united states. that alone, that change is worth spending a lot of time on. it's important also to recognize that the suits that have been brought have not been brought through the conference. they have rather been brought by a whole array of
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institutions, universities, charities, publishing houses, and the like. because these organizations and these individuals have recognized that their religious liberty is at stake. regarding the question of the accommodation, it's 110 page rule. there's a lot of intricacies in it. until now we have been dealing with two previous iterations of the rule. now we have the final rule. and we will subject that to intense study. and that work is getting under way now. >> the reason that we would support the civil rights legislation that you mentioned and the difference from this sort of mandate from that legislation i believe can be found in the founding era, in the words of the declaration of independence and then
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communicated in the constitution of rights that are held self--evident. we believe that what was happening that was being addressed in the civil rights movement was the oppression of people by an an arkic system in the american south particularly that ran counter to the natural rights and human dignity of persons protected in the constitution. what's happening here is that you have a government not allowing people to maintain a sense of human dignity and free exercise of religion, which is also guaranteed in the united states constitution and is a natural right. so we believe there is great continuity between the sil rights movement and our standing together to say we believe in free exercise of religion and freedom for all persons not just ourselves. in the letter you ask for an expansion of the exemption but
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it doesn't specify how far you think the exemption should go. like the ash bishop was just mentioning, you also have the for-profit companies. are you asking to be expanded that far or just as far as the organizations that you represent? and then secondly, is there anything you can tell me about the timing of friday's announcement of the final rules? did that come as a surprise or were you expecting that the end f june or earlier? >> to whom are you addressing your question? >> who can answer it. >> well, i'll take a crack at it and dr. moore and anyone else would like to take a crack at it that would be great. for the last 40 years under the church amendment a great latitude has been given to private business owners and to religious organizations in
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matters of religious conscience and health care. and it is that latitude that we are now moving away from. that is really what one might call the status quo. ideally that would certainly be -- we would like to see that restored. failing that certainly something much more ample than we see now. and our concern for our institution is a concern to serve, to be able to do our ministries of justice and charity and education and health care according to our own teaching. but our concern is also broader than even that. it extends to conscientious private individuals because religious freedom inheres first and foremost in the individual. pope francis recently said that
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we are not to be parttime christians but full time christians. so we would want people of belief and of conscience to be able to run their businesses and their daily activities according to christian principles should they choose to do so. and so that's the extent we would like to see it to go to. >> i would agree with the arsh bishop on that and to note the frustrating irony of the government seeking to tell us what religion is. when churches in this country for 200 years over 00 years have been serving as the arsh bishop mentioned not only in word but also in deed in words that are rooted and grounded in our convictions. that is a frustrating place to be at this point. >> yes, sir. >> i'm tom how long with the washington times.
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this question could be for anyone. i know that some of the plaintiffs in the lawsuits have been filed to make a distinction between emergency contraception sutch as plan b versus more traditional oral contraception. can you talk about why the distinction might be important in this debate and why you define emergency contraception as an abortion-inducing drug? >> well, there's not a doctor among us up here or any medical moral professional. ut i would say that what's been proved under the mandate are all f.d.a. approved contraceptives. own n particular, by its manufacturer and by most scientific accounts, it has een shown to induce an early abortion. and certainly, if you believe
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there's a human life there and you believe it's been taken, it's being taken unjustly, that brings you beyond the realm of contraception into abortion already and that is problematic. very problematic for a lot of people. >> and the issue of course is broader than simply that of contraception in any of these forms. there are many persons of faith and others who are part of this coalition who would have widely divergent views on extra seppings and abortion an other things. we think the issue here is the principle of conscience and free exercise of religion. so there are many who would be standing with others in following their own religious convictions who would not necessarily hold the same. my question is, if you're
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saying that religious companies should have religious freedom in a sense, are you setting up a situation in which the employees' religious freedom is against the employers' religious freedom? and why should the government step in and say i'm going to side with the employer rather than the employee? >> well, we don't believe that the status quo restricted the freedom of employees. what we're asking is for employers not to be coerced into participating in the purchase of devices and technologies to which they have a religious objection. we don't believe that restricts religious liberty on the part of the employees, especially not in an american culture with contraceptive devices and medications as available as they are. instead, we believe this compromises the freedom of conscience of those employers.
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>> say too when a perspective employee signs on to let's say a church institution, or a business that's being run consciously intentionally as a christian institution, one understands there's a kind of a mission there, there's a kind of ethos there. and i think those employers are pretty up front anti-about that right at the beginning -- up front about that right at the beginning. so it's always a person's choice whether he or she wants to sign on to such a thing or not. >> i just wanted to know what the next step is after the open letter if there are more plans to do specific things now that you've distributed the letter. >> well, i think we have begun
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an ongoing conversation with one another and with the broader outside community about these things. we're not going to back down on this question. i think the government has been waiting us out for some time thinking that roman catholics and evangelicals and other whose are opposed to these thingless somehow go away. we're not going away. we're going to continue to speak to this. nd i think the next step is to ask the administration again to reconsider as we have in this letter and also to work with members of congress toward a legislative solution. this is sort of a follow-up to the two previous questions. how do you respond to the government's argument that while -- that there's a difference between individuals and corporations? and that while the individual
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owners of a corporation or a business have religious rights protected by the first amendment, for-profit secular orporation does not? >> i would think that, first of all, it's always been understood that individuals in our country have been able to run for-profit corporations according to christian principles. and wouldn't it be a shame if it suddenly became impossible to do? we're speaking analogously, we're speaking by way of comparison. but corporations do have a kind of an identity. they do have even under the law a form of what one might call
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personhood. certainly very true also of church institutions. by which the character of the enterprise is shaped and designed. and we would certainly like to ee that respected. >> if there are no more questions then thank you and happy writing and happy reporting. >> that was an event frol from earlier this week religious leaders voicing their concerns over the extra seppings mandate. as always you can watch it on
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line at our video library at c-span.org. and the health care law will be the topic of conversation on this sunday's "newsmakers" with american medical association president. she talks about the country's doctor shortage and new ama rules that treat obesity as a disease.
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in the first case united states versus windsor the court declared that part of the federal defense of marriage act or doma which defined marriage as between one man and one woman for the purposes of federal law was unconstitutional. in the second case, the court held that it lacked the authority to decide the question it was asked to address namely whether california state constitutional provision defining marriage as between a man and woman known as proposition 8 was permissible under the federal constitution. both the cases were closely divided 5-4 decision t in the wake of these important decisions we are privileged to hear from an accomplished group of panelists who have offered their talents as lawyers and scholars to help us better understand both what happened last week at the supreme court and what future impact these
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ases might hold. we'll hear from each of our panelists first then give them an opportunity to respond to one another and finally time permitting we'll open the floor
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for q&a. before we dive in, a brief word for context about why we gather. as catholics and other people as good will we seek to understand the events of our day as fully and accurately as possible because as pope francis recently put it those who are led by the holy spirit are realists. they know how to survey and assess reality. that enables us to live out our callings fruitfully. our success of course depends not just on what we talk about but also how we do it. i invite everyone to join with the panel during q&a time at the end in striving for a period of fraternity and charity and in a special way that includes solidarity with those of us here tonight at the center of these topics. including our gay and lesbian brothers and sisters, those who are wrestling to understand their own views, and those striving to live and raise families in accordance with the church in present-day society.
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with that introduction, let's dive into our discussion and we'll turn it over to the professor. thanks very much for that introduction. there's that old line that a german joke is no laughing matter. and neither is this occasion. today when we dispense with the warmup humor, but as a pray lewd to my remarks tonight i want to -- prelud to my remarks, some of us raise the question whether the notion of same sex couples could encompass two friends, two widows who are trying to pool their social security benefits and pay off the expenses from a nursing home after the death of a spouse. now, could these people take advantage of the new ranges of the law with the understanding that a same sex couple need not apply a sexual or erotic
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relation? the answer was always no. it had to be clear that the law was recognizing a legitimate sexual relation. yet the question was how would we know? it was a sexual relation. ? the supreme court in massachusetts when it struck down the laws on massachusetts' on marriage insists that it was no longer legitimate to require cons mation as the test of marriage. now, that group of four judges in massachusetts is not exactly overflowing with genius. but even they would have been embarrassed to say that a test of cons mation is no longer required for a marriage but absolutely required for same sex marriage. now, i mention this now just to recall just one part of a rich mixture of arguments that had been offered over the past ten years as we've engaged this question. yet none of this elicitted the engagement of mr. justice
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kennedy and his colleagues. in his understanding there were no arguments on the other side. the opposition to same sex marriage could be attributed entirely to an irrationale animus. but in his refusal to engage the serious arguments, insisted simply on characterizing his opponents as bigots it could be argued that it was mr. justice kennedy himself that was showing the most pronounced irrational animus. justice scleia pointed out the way justice kennedy characterized bigots the minds that brought forth. his stopped short of mentioning me, because i was one of those minds that brought forth the defense of marriage act. but mine was section 2, not section 3, the part that was struck down. that was the part in which congress simply stipulated that every reference to marriage in
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the federal code referred simply solely to the union of a man and woman as husband and wife. that part seemed the most invulnerable to challenge because no one could doubt the authority of congress to specify the meaning of terms in a code that congress alone would legitimate. and as was just pointed out there are so many places where congress has to address the definition of marriage, whether it is a tax law or naturalization of spouse. i had the privilege of leading the testimony for the defense of marriage act back in may, 1996 and as i looked over that testimony, i discovered again that justice kennedy had been much on our minds at the time and a critical factor even then. so what i would like to do in leading is just to sketch in briefly for us the background. what gave rise to the defense of marriage act and why justice
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kennedy had been the driving force in creating this problem from the beginning. the defense of marriage act was brot forth with the awareness of two currents in the law about to meet. one emanated from hawaii. the supreme court in that state had installed same sex marriage drawn from the equal rights amendment in that state. so the dwe immediately arose whether a couple could be married in hawaii and then bring their marriage back to the mainland through the operation of the full faith and credit clause of the constitution, article 1, section 1, the clause that leads us to expect that a marriage contracted and performed in another state would be respected in the second state. ow, in that way if they were required to respect the marriage coming in from hawaii -- and people were putting out
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ads, come to hawaii and bring your marriage back home to connecticut. if the new state was required to respect that arrangement then we're in a position in which one state could indirectly nationalize same sex marriage for the whole country. a state could refuse to respect certain arrangements coming in from abroad if it had a moral objection registered in its laws to certain kinds of marriage. say marriage of people below a certain age. but that is where the second current came in. because working its way through the courts at this time was roamor versus evans coming out of colorado. i was drawn in as a consultant on that case. we'll leave it to other times and details on that case which was about gay rights in colorado and amending the constitution there. and what we anticipated coming out of that case was precisely what took place with justice
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kennedy's opinion in romer versus evans which came down after the hearings but just at the time when the house was in the middle of debating the defense of marriage act. this was that moment in which justice kennedy famously declared that the moral aversion to the homosexual life seems inexplicable by anything but animus toward the class it affects. it lacks a rational relationship to legitimate state interest. centrists of jew wish and catholic teaching should be reduced then to an irrational passion and animus. no law then that casts an adverse judgment then on the homosexual life could find a reason to ground of justication. and therefore, a state could not incorporate any longer within its laws an adverse moral judgment on the homosexual life.
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now, if that were the case, a state could not refuse any longer to honor a same sex marriage coming in from another state. now, romer versus evans could now knock out the prop that supported the authority of the states in refusing. and that's what brought forth induced some of us to come forth with the defense of marriage act. that congress would give guidance to the courts under the full faith and credit clause and support the authority of the states in refusing to credit those marriages. saying not only to judges but could congressmen have a responsibility to cast judgment on the constitutionality of those act that is come before their hand? barnie franks said this best, i think this whole thing is unconstitutional, to which we said you make our point and we invite you to make it right
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now. the court affected last week not to touch this part of doma. kennedy and his colleagues profess to reach only section 3 of the act that part in which congress simply assert that had all references to marriage in the federal code remb only to the marriage of a man and woman as husband and wife. but justice kennedy thought that the very title of the bill defense of marriage demeans and humiliated gays and lesbians by implicitly refusing to accord to their relations the dignity of a marital union. and so in his construle if new york provided for same sex marriage then the federal government should respect that marriage in its policies on taxation and everything else. ut at the same time, kennedy comblcomb applauseably claimed that his opinion here was carefully limited to section 3 it would not touch section 2 in questioning the authority of
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the states to form their own policy on marriage. ow, that pretense will soon be dissolved because it's the decision of the court didn't strike down section 2, kennedy's key premise planted long ago in romer versus evans surely will because it's the premise that has worked its way through all of the litigation since then. in lawrence versus texas in 2003 justice kennedy held that the state could not justify the laws on soddy because there was no rational ground in which to break into the autonomy of personal relations and condemn homosexual relations that people pursued in their private lives. he inseisted at the time that his judgment entailed no formal recognition in the law of any other relation.
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that is to say marriage. to which justice scalia famously said at the time, do not believe it. do not believe it. it's coming soon. aint took only five months to prove justice scleelia quite right. only five months later the council in massachusetts before it invoked anything invoked kennedy's language in lawrence versus texas to strike down those laws on marriage in the commonwealth and install same sex marriage and then kennedy in turn invoked lawrence last eek in striking down doma. and as sca legala remarked last week we are simply waiting for the second shoe to drop. the activists will come forward to test the laws and the constitutions in the various states including the laws that offer no recognition of same
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sex marriage. and all that a judge needs to do now is invoke justice kennedy's overheated language to conclude that these laws or constitutional provisions reflect only an irrational animus, that they can supply no recent grounds of jussfissication. so to use an old line discussing marriage now without justice kennedy is as they used o say rather than like ham let without the first grave digger. but some of us saw as a tragedy there's a lesson here i think i'm afraid about conservative juris prudence. many of our friends would like to believe that these decisions are indeed limited and constrained. that the court will respect the difference between striking down section 3 of the federal code while respecting the authority of the states under section 2. or that in hollingsworth the
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decision will simply be reduced to the holding of the court in the district court case which touches no one but the litigants and has press dential value as sca leah says as no other corts in the land but events have run well beyond the hopes. the marriages are the political class is acting like this has been restored to the whole of the state. they that theto see , thelying moral judgment moral wrong dennis, the want of rational justification for refusing to credit this, that it sets off a dynamic of its own
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that promises to run through all of this to come, bringing down all of the remaining areas and to sweep past all of those distinctions in the positive law that our friends treat as though they really meant something. ?here do we go from here are we doing for time? . have some matters what i might say is this. lincoln and his congress did not take the path of a constitutional amendment to deal with the regime altering decision. they moved to counter that they're an act of ordinary legislation which link in signed in 1862 and it went for slavery from all the existing territories and any that may get this out, anything of the
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dred scott decision. they're putting the question to the court to take a sober second look at what you have done. this is not work we could rise to the level of a constitutional amendment 17 years ago we were beginning with this. i thought it would have been useful. -- not be taken seriously. profess to leave untouched but to draw out the implications that the left would not find congenial. the couple in new york could be covered by federal law.
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they would not follow them if they went to alabama. that's what they seem to be implying. if we get this going it does not stand a chance of passing. if republicans take the sentence again it does have a chance of passing. raising this point, bringing --th this bill offers those office us a chance to see who among the republican political pass -- class will have the conviction to support this of makingd find a way the argument in public. if you find them telling us
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that we really cannot talk about these matters in public aymore, that it will being telling sign. thank you. >> thank you for being here. they have just the dome a case. i will be discussing the prop eight case. howuld like to outline they see the relationship between the constitution and marriage. distinguishant to the constitutional question from the policy question. it is not speak one way to the other on same-sex marriage. this suggests is what marriage
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means on the variance revisions of law. it is permissible to retain these laws. it is permissible to redefine marriage to include same-sex unions. the person has a constitutional right to marry another person is implausible. it is a very different matter from protecting out the courts will rule on it. everywhere else in the world marriage has always been a man -- a marriage of man and women. it reflect the biological reality that only opposite unions and generate children. the for government recognition is to encourage the optimal context of marriage and to discourage it and socially harmful nonmarital context spirit this is a male-female union existing in every state. atexisted in every state the time of the post-civil war. contends that the post-
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civil war amendments were directed against the traditional understanding of marriage or that they had anything to do with homosexuality. claims for the constitutional right rest on some combination of the following. this is nothing more than camouflage and positions of one's own moral preferences. i do not claim that the constitutional entrenches them. confusiondes profound about what marriage is about that are thect stuff of policy debate. illustrates all these flaws and more before , i wouldhe criticism
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like to provide some helpful background this goes back to 2000 when california voters exercised their power over the initiative to it it's proposition 22. difference was proposition 22 has the status of a statute under california law. this definition of marriage, it have been the definition of marriage forever in california. they had proposition eight which intense debate was adopted
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by the people of california. no sooner had the litigation they filed this lawsuit and state officials to defend the law refused to defend it. governorthen schwarzenegger and then jerry they both continue the policy of not defending the law by refusing to appeal the adverse decision that judge walker issued. someportant to give flavor of the hijinks that occurred. the hijinks that occurred. it is fair to say on thousand thousands of words and posts that there has never been a
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federal judicial procedure more awkward irregularities. a total of three times. he issued a series of absurd factual findings that were contradicted by the other side's own witnesses. he ended up issuing abroad statewide injunction that would bar all state officials after he retired from the bench, we learned that all this time he had been in a long term same-sex relationship and this was deciding his own right to marry his long-term partner.
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it got even worse. the case and of being assigned to a panel including to the judge. judge reinhardt's wife runs and insulate you -- an aclu affiliate. she had an organization file briefs in this case in front of judge walker. i agree that proposition 8 should be struck down. she celebrated the ruling in this very case but judge reinhardt saw fit not to recuse himself. i could go on about the absurdities. let me jump forward to that particular standing issue world. one thing that the judge did right is he certified the question of what exactly is the status of the proponents who stepped in to defend the law when state officials would not, what authority did have a state law? the california supreme court
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unanimously ruled that it is essential to the integrity of the initiative process in california that the official proponents of initiative able to assert the state's interest in behalf of the people when public officials will not do so. the state said proponents are standing in the shoes of the governor and the attorney- general. they did not have to have the standing that there would normally have. you end up with the odd 5-4 division rowling. the descent was written by justice kennedy. you have a mixed group in both alignments. this was an open issue for the
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court. i do not pretend it is an easy issue but it is significant that the constitution simply does not speak to the question of how states allocate their own internal authority. there's nothing in the constitution that says state cannot assign authority to one person rather than another. the separation of powers apply against the government. that do not apply against the states. it is quite a step for the court to have said given what the supreme court had to say about the authority of the proponents that there was not standing. the more serious consequence is that the ruling makes executive branch lawlessness effectively
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unremediable. when -- and the supreme court and i think wrongly has said we have no authority to step in to decide the substantive claims that they proposition a proponents have brought. the very limited of the ruling is the court did not address the merits of proposition 8. that is mixed-. i would prefer the do so in a matter which way would go. if the court is going to roll that marriage laws are not constitutional, i would rather see that up front rather than proceed by stealth and try to oppose this-impose this on the people when they are not looking. this will be litigated and
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fought democratically in various states. first to highlight the virtues of the democratic processes. the wisdom of the constitution saying this issue like so many other contentious issues is for debate and decision. everyone feels he has a fair shake. we tried to persuade each other and make arguments that are appealing. we treat our enemies [indiscernible] the incentive is to stigmatize and demonize and brand as bigots people who held the deposition that barack obama at least pretended to hold until last year or the year before.
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the democratic process also allows us to revisit these issues over time. to realize this thing that we thought was a great reform has had a horrible unintended consequences. i think it offers huge advantages over courts inventing constitutional rights. i would like to emphasize why marriage matters. i referred to that briefly before. we seem to have now this notion that we can redefine basic institutions at no cost. we can ask how many licks does a dog have if you count a tale as a leg. three-quarters of the country would scream 5. a dog has four legs and if
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you're calling a tale leg, your very confused. i think we see the consequences of around us of the collapse of the marriage culture. this is not the fault of homosexuals. heterosexual of have done the bulk of the work and ruining our marriage culture. you see the damage all around us with huge percentages of out of wedlock births and all the misery, all the governmental programs that cannot possibly put hannity down to back together again when you have families broken up like this. this ought to be the time when we realized we need to work to restore a vibrant irish culture 3 a not take a sixth step and i fear an irreversible step in the wrong direction by redefining
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marriage in a way that orients it away, decisively away from the mission of raising children. thank you. [applause] >> thank you. you have heard a little bit about the doma case in the proposition 8. my job is to come from --talk about legal implications. the good news is that same-sex marriage advocates did not go around the country raising millions of dollars of money to fund these cases to bring them to the supreme court for the result that we got. they wanted to nationalize a redefinition of marriage that would be imposed by the judiciary. they did not get that. they lost. they did not come here to get a default judgment. the good is it is it does keep the marriage somewhere where it belongs which is in the hands of people and their elected representatives. and pointed out that is where it belongs. they're reading it into the
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constitution. that is not the way to decide one of the most contentious issues that we're facing today. that is the good news. we still have the state's in our elected processes for now as a backstop on these things. we have not put-- we can see how this plays out in various states at least for now. the bad news is everything else. the legal implications are troublesome given these decisions, given the logic behind them. starting with the doma decision. there's a danger to the grounds that there is a lack of rational basis for the government to enact laws defining marriage as between a man and woman. it is explicitly defined marriage as a has been defined through all of him in history.
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we have seen this slope is the barrier-is more sebree than some have predicted -- the slope is more slippery than some have predicted. they're saying there is no rational basis to not fund these couples. this is truly frightening and it undermines chief justice robert's careful attempt. one was this was talking about the right for the decision. -justice scalia may have had the
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better of the argument. rather than limiting itself to where the decision said that the federal government does not have an interest in defining marriage, and perhaps -- states have taken the role of defining marriage, domestic relations law. you have to look at state law. that was a line that the majority took. the logical next up, there is no rational basis for the government to do this. i think you could articulate a rational basis for both and more rational basis to do it in the
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federal government. i do not think we can count on the judiciary to see that when they refused to see every rational basis that has been presented. we see that is already happening. another natural consequence is going to happen fifth. we will see an uneven and confused regime of laws. the decision itself, we should not have a situation where this [inaudible] there were concerned that you could get married and not have federal benefits. there is the question of what happens when you do get married in new york and moved to north carolina. it had federal benefits one day in lost in the next. one could point out sixth that is the value of-one could point out that that is the value of having doma. they're going to make the logical argument that this is strange to have an uneven system of marriage and so now we're
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going to be pushing portability of benefits. and there is currently complicated questions. the windsor case itself came up in the context of state law. what happens if you get married in new york and you move to birth carolina and you still own property. your state-your estate is being probated but what about new york? does that go to your same-sex spouse or does that get run in a different fashion in north carolina? the pay federal state taxes but you were in the state of new york. been to see how that happens. the next up will be with force these to be portable. there will be the next court case. new york becomes new las vegas. everyone goes to new york or one of the other 13 states that has a same-sex marriage. to get married and to get home. that puts a lot of pressure on section 2 which says states and
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i have to accord full faith and credit to these marriages especially in cases where states are involved in administering these federal benefits. what position does the state take? we do not recognize same-sex marriages but we have to administer a medicaid program that does recognize to people as being married. it will be very complicated. the trajectory is all these decisions will be resolved in favor of nationalizing same-sex marriage and it will be done by unelected judges imposing that rather than by the people deciding for themselves. that -- my strategy would be the fraud in the pot strategy. if you had thrown them in a hot pot there would have jumped right out. by taking it step by step i'm afraid that it builds
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complacency and cultural acceptance of all these things and that is a logical strategy. it is -- a lot of people were warning about as the case was being taken. the characterizations were rampant between this case and roe v. wade. pointing out when you have a social movement like that that is undecided, very contentious and the cortex and out of the hands of the people and nationalize it-- nationalizes it all at once. it shocked people and galvanized the pro-life base. the same-sex marriage advocates did not one case that would do that for the marriage movement. the question is will it and if we treated as do not worry, this
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is a narrow decision, perhaps will get the down side without any of the upside, at least galvanizing the base. in terms of the proposition 8 decision, the biggest legal consequence is the risk that it brings to the initiative process. justice kennedy pointed that out. when you have a situation that the state initiative cannot be defended by the executive branch of the state government, any state initiative in that circumstance is completely vulnerable to attack. all you have to do and my strategy again in this case is
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to wait until you get a friendly governor and attorney general who you know are not going to defend it. you win by default everytime. you do not need to appeal to the equal protection clause or the due process clause. you just piece by piece take apart all the remaining 37 states that do have traditional marriage. you have to wait for your opportune moment and is a one- way ratchet. the ramifications go beyond marriage. which is looking, there is a large number of them that have to do with the citizens pushing back on judicial decision. the process was an attempt to avoid having power in the hands of republican -- [indiscernible] but now it is being used a lot by people who are pushing back against judicial use of power. ec initiatives that are going back to reinstate rewrites. this is coming before the supreme court. it followed the decision allowing affirmative action, higher education there and
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saying we're going to have [indiscernible] that is being brought to the supreme court. you have a state executive that is going to defend the decision. if you did not this exact same thing would happen. that is a troublesome consequence because many of the states that have traditional marriage, it has been enacted through the initiative process. it does not have to be an initiative. it could be any law. we're entering an era here which is troublesome. the president is refusing doma. rather than having a view toward the institution of values, there is a willingness to not offend for -- to defend the law because this is not a policy etf -- that is not my policy. you can refuse to defend any law and that is an unfortunate
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development. the other potential next up is going to me that we see a challenge in a state where there is standing to attack one of these laws. say that the 14th amendment requires equal treatment and require same-sex marriage to be forced off people because that would be treated differently [indiscernible] the question is whether justice
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kennedy would buy this argument and that is what everyone is looking towards. there's a reason to think he might not go that far. he was torn during oral argument. we will see how it worked before we decide to institutionalize that. if it was that excited about nationalizing same-sex marriage at this point, it is not clear why he would not have just jumped on and tried to go there
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in his dissent in the proposition 8 case. at least for now that seemed to be-he could be a fraud in the pot as well. maybe he is still feeling of the water. we will see if he of all along with our national culture. what is next. there is two angles that we should be looking. one is the culture that has been mentioned before. defending marriage in the culture. the second part of that is philosophically explaining the
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underlying roots of marriage and its value. the other half is living in out. that means holding everyone in the church the same standard of sexual morality that we hold those with same-sex attractions to. everyone needs to be living fidelity in their rotation. -- vocation. -- location. it is possible to live in fruitful marriages and chastity is a possible bowl. in our culture that is seen as off the table because it is not even possible. until catholics are willing to and other people who believe that are willing to show it is possible. another very important thing is to shore up the limitations of the government in terms infringing on our religious freedom. we just had a finalization of the hhs mandate. this administration has been troubling and everything they have ever said about religious freedom in terms of arguments. some of them have been rejected
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by the supreme court. the president has not really got a memo on that. he said he would not be forcing churches or religious institutions to perform same-sex marriages. thank you very much, mr. president. he really had no authority to do that. it is hardly a gesture of grace on his part. it is very worrisome that he seems to think that that is the end of the line. it is not at all the extant over religious freedom. you're not and will unless you're willing to cooperate. we will see secular colleges that have to open housing to same-sex and married couples. the wealthy employer problems, offering benefits to a same-sex spouse even if it violates your personal beliefs.
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>> churches are counseling people and hiring teachers, performing social services. catholic charities have gone up against adoptions and forced out of business because of their unwillingness to perform those. i'm married couples might not allow adoption by this married couple. we need to use the time we have, to prepare the defense of religious freedom for wendy's dominoes fall. the positive note is that we saw the decision that was absolutely a step in the right direction. recognizing maybe not a bigot of victory but that the government should not have the authority to determine what compromises earth festival. that is a step in the right direction and the need to keep taking many more. [applause]
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>> i will give the panelists feature a couple minutes to respond to what each of them has been saying, and after that, will move on the questions and answers from the audience. >> i would also point out that my friends with me today are people that offers some of the most luminous commentaries of the constitution, >> bench members. >> it is a chestnut horse. the point about optimistic than the pessimists, they say it can't get any worse and the optimists says that it can.
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this is not confined to initiatives. the government can refuse to defend the laws. he was really refuting these claims about marriage being inherently part of family law. they argue years ago that if we had a state that that dissolves all contract of marriage without the consent of the parties, it raises an interesting question. we don't have to address that question. we're seeing the court's challenged those laws. the thing most readily of local law, the activists are pleading for local jurisdictions on this matter, and we are moving to invoke the full faith and credit clause.
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that issue, i was -- the majority opinion was written by the solicitor general, and we take a look of the reasoning that our guys have to put in place to win that case.
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we can see every premise of the other side. and we are in a very difficult situation. arguing this case, we're pointing out the don't need a marriage for love. no one can deny the real of the census between parents and children, grandparents and children, siblings, and in the nature of things, none of those would be diminished if they are
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not intended by penetration and reflected in marriage. it is an incomparable framework of commitment under conditions in which children are generated and raised. so of his child has accepted that his parents have forgone their freedom to equip their relation with one another, if we move away from that natural from work, what do people say that our love is not confined to a coupling, which are connected to a larger ensembles. we have a larger group, and we can't simply be one section. we're back to polygamy. the upshot may be after this decision the other day, i can marry one of my sons or both of them. this might be an open question, but we see there is no principled barrier any longer. but he offered pressing the envelope.
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what is it you are now in a position to say when people come to say, why is it that we can't marry the other people we love? unclear past the barriers and it is just a matter of unfolding the implications. i'm sorry i can't leave you with something positive, will you except negatives? >> on polygamy, some people say that is a down slope argument. polygamy is of slope from same- sex marriage. it has been a common variation on monogamous one male and one female marriage. certainly the distinction between two and three is more arbitrary than the distinction
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between male and female. justices are not moved by logic and principled reasoning, so maybe that will not happen tomorrow. there is no basis for the fighting and adult ancestors another. -- incest is another. both cases, you had supporters of marriage using the ordinary political processes, fighting the good fight, winning, and the other side is running the court to government leaders saying please, don't enforce this. or we will punish you. i will highlight that he when doma was enacted, it had overwhelming majorities of both houses, 342-67. there were many strong supporters of gay rights.
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it was signed into law by bill clinton. >> i will pick up the polygamy line and say that the best defense of a monogamous marriage act, it might be an interesting test case. what is the logical basis and what the court is putting their money where the mouth is. even justice sotomayor was making questions, what's the distinction between consensual
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adult incest or you don't have the concern about children, to a gulf of let them love each other the way they want to. if that is the basis of marriage, it is very arden make these distinctions. during the argument, everybody was saying children is not what is about. it was fascinating to watch the press conferences because almost every single person said, i am so excited, but this is about the children. the children knowing that their parents are married, the voices of the thousands of children whose parents are in same-sex relationships now. they know that marriage is about children, that is what makes families difference in just two people that want to come by and social security benefits. maybe we can capitalize on the natural instincts at some point. >> i think it is fair and appropriate as a policy matter. they have suffered from the collapse of a marriage culture.
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those are kids that are not being taken into account when they tried out for the camera. >> the same problem arose when we get away with polygamy. i was talking, ha likely to see become -- the couple moved from new york to alabama, interfering with my right to travel because if i can't carry my benefits to arizona, your and hitting me. it will be brought back. and then the cost, flowing to you through the federal government is something that you can lose when you enter a state, this takes us back to the theory of citizenship, the rights of citizenship could only be through your membership of state.
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of ingredients are there. there is only a matter of time for their inclination. >> we're close to the end of the hour, but we have the permission of the house, we will take a few questions in the form of a question. >> this is a very overwhelming discussion.
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i just wanted to ask you, where is the whole? -- hope? how do we push back to prevent us from going down that slippery slope. >> i just got voted the optimist. a lot of these statistics looked just as grim back then in terms of the trend and the elites legalizing abortion. when people started to see in the culture recognized how devastating abortion was, there is now a big push back and we have more young people considering themselves pro-life. it has turned around. we can hope to do the same thing in terms of making the cultural argument. i think our other hope is that we have a hope that we can rely on this that choose to be faithful right now.
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>> pope as a theological virtue and optimism is may be a human delusion. the good news is that things are so bad that everybody ought to be awakened to lift. look back at how aircraft on the venusian everywhere, and if your way and conscious, those of you trying to live out your belief in your lives, he will be dealing with this issue all the time and you have to prepare yourself and your kids, work
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with friends and neighbors to make the argument. the battle is engaged. >> remember, don't just do something, stand there? this is one of those moments we have to reject that aphorism. it is important that we do something in get the statute in the works. it has been distressing to me to see friends of ours writing pieces on how republicans can regroup, they mentioned immigration, taxes, and what is left out is marriage and abortion. nobody is mentioning we are in the middle of a crisis over marriage. i am afraid some of our friends are drifting into the notion
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that is not prudent to talk about these things in public. the republicans will not win. like lincoln saying we can't talk about slavery in the churches, we can't find a place to talk about them. the task is to come to an understanding of the issues that are central. and give us a way of talking about it. so ordinary people can speak again and we have a political issue that is legitimate to talk about these things in public and show you how to do it. >> thank you for taking the time to come and talk to us today. i was wondering what your response would be to the question of someone were to ask you whore say there is no legal or moral precedent to deny marriage to a law-abiding citizen based on the factor that they could not necessarily be good parents. >> marriage exists because parents have kids outside or inside marriage. if you are suggesting that the
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alternative to someone being a bad parent inside marriage and outside of marriage, all kinds of social science -- clearly, americans seem to rebuild. a lot of that involves teadching and when and how to be -- teaching men and women how to be fathers and mothers. >> yes, sir? >> to the point it is evident the heterosexual union is not only necessary for the structure of marriage, but in terms of procreation, can that be
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explicitly expressed? >> i think it has always been understood to be implicit. these days, we need to make that method so we don't understand that. i don't think that is necessary. >> i think that a thread running through your comments was the lack of a purchase that this position and the benefits have for society. someone like justice kennedy, mentioning that there would be irrational -- a rational basis.
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what is the reason for that lack of purchase? what are the fundamental divide in the positions here? >> i've been there is a misunderstanding and the notion of marriage. we don't have to institutionalize it in our laws, at least worked into law. providing for the children of that, i think it is just the misunderstanding, just about love and if love is about sex, apparently, it is hard to explain to someone why marriage should be based on something other than to people that feel sexually fulfilled by each other.
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>> the point has been made that the biblical injunction honor thy father and thy mother -- this is aible] serious matter. marriageno arranged in america. this is not for children. this is for all who can understand the regions -- reasons and understand that when they commit their cells to
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another person even when looks may alter with age, they realize there is a nature there that will not asterisk the. they have moral reasons for providing a partner. it has been understood for a long time. for them to do the teaching. clark' >> i think we see very to different ways of inking about the future. the traditional way that understands that we are here on earth and we are going to hope country more just in the future better. is better than the
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it is a much shorter-term. i do think it says a lot about about these understanding of what marriage is. i want to emphasize that this is not that of gays and lesbians. can catch up microphone. >> how does this affect federal funding, especially federal grants to universities? what ability is there promoting the understanding and marriage to
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gain this? >> that is yours. you can take it. granteding through the by this if they do not say they want to. religious are a university. it does jeopardize perhaps any subsidies for student loans. this could be a real problem. i think this is a big part of some of thiseing breakdown even of the understanding that all children
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to have a mother and a father. or aay have an egg donor sperm donor. you have a mother and a father. no person is born with two mothers or two fathers. if we are talking about this to be no and be raised by the care of their parents, the only thing we can be talking about is the institution of marriage and to .ants to come together there is nothing that can really replace a mother and a life. and a child's people recognize even when people are deprived through ins there is a real lack that persons life. they will always do better off
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if they had a parent to help be there for a role model and a support. just to go back to a point obama says that he does not have to lift the hand. his allies can do what was done with complaints with the virus irs. notionuse to accept the of same-sex marriage or contraception. it is teaching things that are not in accord with public policy or get a tax exemption. iny are very gentle ways which to put this on. perhaps one more question. two supremeere are
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court clerks. someone have known how they voted on this case. i know a couple have switched. who said theyrals were going to vote with them. is it possible they would have had this? >> i think you mean some justices understanding in the prop eight case. is that speculation of they voted against standing in the prop eight case. thiswere afraid of how was if it was granted. there is plausible speculation.
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i refuse to accept the notion that they would act for any other reason than the best of the law. we have seen lots of instances where it is refuted. it is quite possible. would be torence force a decision now for justice kennedy to take a stand. that is a big that. maybe we would have immediately gone to a worse results. headeds like we are there pretty quickly anyway. i would have preferred the clarity. if there are no other questions, i will come to clause. please let me for thinking -- thanking them.
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>> it is the woody allen life. [captions copyright national cable satellite corp. 2013] [captioning performed by national captioning institute] >> coming up on c-span, more from a supreme court pose the most recent term with reporters 'sscussing the court decisions involving voter rights, same-sex marriage, and affirmative action. and the federal board of capital.ors discusses 'den jeremy stein on the fed latest decisions on monetary policy. in a look at the situation in egypt where supporters of the deposed president, mohammed morsi, are calling for him to be reinstated. president morsi was removed from office i the military on wednesday. the army and police have continued to arrest leaders
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from the president's party, the muslim brotherhood. there is an intermittent -- an , how to zero,- -- al jazeera, the bbc, and others have reported that there is another interim leader. "washington's ," there will be a -- aical analyst oracle political and historical discussion about the country. serafiniyn wer
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will discuss federal healthcare care. we'll also hear from elisabeth rosenthal about the healthcare cost of childbirth in the u.s. >> one of the points that we make in this book is a parental question. did it make any direct friends -- any difference to make a direct popular vote? yes, it did make a difference. senators would become to act like house members, which is not something any senator wants to hear, which means they are scavenging for votes, they have to deal with the people as opposed to, if you have a state need is 14, all you votes. you can easily pay off, and they did in some cases, a off senators, paying off their mortgages in a couple of notorious cases, to buy their election. christ more with historian >> more with can -- correct
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c-torian richard baker on span's q and a. >> and supreme court reporters from the washington post, the associated press, and other news outlets. the event was hosted by the d.c. bar in washington, d.c. it is about 90 minutes. >> i am art spitzer. i work for the aclu. welcome to the 25th annual supreme court view from the press gallery panel. thank you all for coming. the panel is sponsored by the d.c. bar section on core lawyers and the administration of justice, which is one of 20 sections of the d.c. bar. it concentrates on matters pertaining to court
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administration and court rule, the relationship between the bench and the bar, and all aspect of a lawyer's relationship to a profession. it also focuses on improving access to courts for everyone in d.c. in your programs, you can see the names of 10 other sections that are cosponsored. you can see from that list, they range over most areas of legal practice. there are another nine sections are not cosponsored. if you are member of the d.c. bar and not involved in one of the sections, i commend you to take a look, and get involved. if you are an aspiring member, keep in mind for when you become a member. our thanks to the law firm of arnold & porter for giving us the use of this room, and their logistical facilities. i will not tell you all the
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arrangements it has taken to get us all set up here today. if you have noticed, there is a camera in the back that belongs to c-span. i believe we are being simulcast. you'll be able to watch this again later if you have such an interest. [laughter] you are your friends can, when they rebroadcast it on the internet probably at 4:00 in the morning. we will be reserving time for questions and answers at the end. please think about what you might like to ask is the program grows on. if you do not want to be on national tv, then either do not ask the question, or put a bag over your head. we will be privileged this afternoon to talk about the court with a panel of journalists who have covered the court for a cumulative total of 101 years.
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let me introduce them. tony mauro, next to last, has covered the courts, and he's been covering the courts from 1979. he has continued to be a supreme court correspondent. his college degree is from rutguers. his journalism degree is from columbia. david savage is closest to me. he has been with the "los angeles times" since 1981. he has covered the supreme court since 1986. in recent years, he's been the
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"chicago tribune" supreme court correspondent. he is the author of "turning right," and offers regular commentary on national public radio to talk to the nation. he has also authored the quarterly guide to supreme court. he has degrees from the university of north carolina and northwestern. joan biskupic covers the supreme court for reuters, which was the first news outlet to cover the lincoln assassination. >> we were on it. >> but not joan. she has covered the court since 1989. before joining reuters, she covered the court for "usa today." she earned her degree at georgetown law school. she specializes in presenting the supreme court through the lens of judicial biography, and the author of "sandra day o'connor." she is now working on a book project involving justice
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sotomayor. robert barnes joined the "washington post," covering maryland politics. he returned to reporting in 2005 and began covering the core in 2006. bob had been planning to go to law school but changed his mind after taking a journalism class at the university of florida, and never looked back. his biography on the "washington post" website says, i assume he wrote this, it did not occurred to him as it did to others that he could do both. perhaps the better explanation
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is that he realized he did need three years of law school to practice law. our next panelist has been with ap since 1995. before that, covering various state capitals. he is a graduate of old mississippi. his first book is "black men built the capitol." jesse has alerted me that if edward snowden leaves moscow or appears in venezuela, he is on that beat today, and he may have to leave if his beeper goes off. [laughter] last but not least, adam liptak who took over the "new york times" supreme court beat two years ago. he graduated from yale.
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he was on the "times" in-house legal department, telling them what they couldn't do. a decade later he became a lawyer covering legal issues, and supreme court nominations. his work has also appeared in other publications. looking at sunday's "new york times," this ad announcing his new book, "to have and to hold." i plan to ask him all about it. >> available for preorder on amazon and itunes. >> one more preliminary note, there should be an evaluation
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form on your table. i do not see them. maybe someone from the bar can distribute them during the program. we would appreciate if you fill them out and leave them on your way out. i'm going to sit down and join the panelists. let's start talking about last week at the court. the court saved all four of its biggest headline cases for the last week of the term. how did last week compare to last year when the affordable care act came down? was it just as crazy? tony, would you like to start? >> i do not think so. the decisions were bigger in some ways, but it seemed there was so much intense insanity last june surrounding the affordable care act.
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it seemed little but more normalized this time. there is not as much panic about it. i think some news organizations got new procedures for reporting the breaking decisions. we now have the running of the interns theme at the supreme court, where interns were taking copies of the decisions out to the broadcast reporters on the plaza, so they could actually take a look at the decisions before they reported it, which is one thing that did not happen last year. >> it was an incredibly busy week. this time, the big decisions were rolled out one at a time.
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that made our life a little bit easier. we were worried that two of the huge ones would come on the same day. >> do you think they actually care about you when they decide to do it that way? [laughter] >> no. i think the chief justice has said that the decisions are published when they are published. i do not think they take into consideration very much how we report them. when they are done, they are done. that is when they release them. they never tell us. i could be wrong about that. i think when they are done, is when they release them. they do not care when or how it makes our lives difficult. >> that is their public line. they did manage to drop the case is one at a time over the last three days. maybe that is just coincidence. maybe somebody is looking out for us.
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>> maybe they care about the burden on their own staff. >> i think they do make some accommodation for the press, and it says that during the rehnquist era, there was a one day when some of us remember when the court handed down seven opinions over 200 pages. we politely asked the court to not do that again. of course, the classic answer was -- nothing says you have to report about them all at once, why don't you save some for the next day? why don't you save some for the next day?
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showing a complete lack of understanding of how journalism works. since then, they have not done that to us again. there is some sort of a numeric cap on how many they will issue in a day. >> they want some attention for their opinions. it is in their interest not to give us all three or four biggies on the same day. their main issue is to decide the law, but they have statements to make. they have their own self- interest in trying to get the news out in a way that is orderly. >> it is hard to know what goes on extemporaneously. i feel like i ran across a memo saying -- do not release this on a friday. that will not get enough attention. you should wait until monday to release this dissent. >> have they ever handed down decisions on a friday?
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>> back in the day. >> yes, they did. in fact, i think it was one of the brady gun laws in the mid- 1990's. i worked at "usa today," and if you got news on a friday, you were out of luck. there was no saturday paper. they are out by thursday. this year, by wednesday. >> let me start this question with jesse. you work for a wire service and you have to get your stories out faster than anybody else. how much of your stories can you write in advance? >> you can write as many different versions as you want. [laughter] we normally write at least two different versions. one says, the court has upheld the lower ruling.
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we always start with at least two. you hope that the court will do one of those things. one of our greatest fears is when there is a plurality decision. then you have to figure out which part of it they agreed to or what that decision does. this year, most of our prep, we called most of them right. we could use a version we had prewritten. in the past, for healthcare last year, we had at least eight different stories ready to go, guessing what the court was going to do. luckily, one of them was the correct one. this year, the maximum we did on
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anyone was four, maybe five. you hope you get the right one that you can send out as fast as you can. >> quite a few of us are in the same business. when i first started, you had time to read the opinion, listen to the dissent, go downstairs and think about it. now a lot of us are in the business of having to file something in five or 10 minutes. on prop 8, it was great interest in california. i had about five different versions. it worked out ok because one of the versions was what they did. i basically said go with b. they put it on the website right away. that is another reason this year went better for a lot of us because we went through it last year. >> right.
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>> does scotus blog make a difference to that? a lot of people are sitting at their desks watching the live blog. i bumped into -- he argued two of the big cases this year. the week before they came down, are you going to be going down to the court every day? he said no, i will be watching the live blog. does that take any of the pressure off you guys to get the news out? >> for us, it is a different audience. we have our own twitter site ap_courtside -- where we do the same thing. it serves its audience well, but
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it is a completely different audience. >> they are competitors. your response to competition is not to say, they are doing a pretty good job. >> the audience might be interested to learn how they do it. no electronics are allowed inside the courtroom. how was tom goldstein doing his live blog from the court? >> you will have to ask tom that. >> he sits up in the cafeteria. >> a lot of the live blogs that have been down this year from the court are not really live. in most cases, someone listens to a lot of the oral argument. at least, that is where most of these have happened. they come out and then they write it as if it were a live blog. this person said this and the next person said this. so it gets the kind of feel that
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readers on the web like, but look at the time stamp, it is not exactly current. >> bob is making a point about arguments. on the decision days, they were analyzing as quickly as they could. it is very fast, very good. >> david, you mentioned there was great interest in the proposition 8 decision in california. you are writing for the "l.a. times" and the "chicago tribune." did you do different stories? >> i did not have time to do two different stories. the "l.a. times" was much more interested in getting something up on the website. the "trib" is actually much more interested in the newspaper. the "l.a. times" wanted to get because of the great interest in what this meant for california.
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>> did you have the assignment of reporting what it meant for california? did someone else get that angle? >> what i wrote was the court had sort of cleared the way for gay marriage in california. that was the bottom line. people were not that interested in standing. they decided the case in a way that left judge walker's opinion. that meant gay marriage very soon. i don't think i speculated, it was about 24 hours, if even that. you could tell the way the court decided the case, it put it back in the hands of the california officials. the attorney general and jerry brown were very interested in seeing prop 8 go away and allow gay marriage. that is what i said.
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>> you talked about writing stories in advance. how much preparation sometimes goes into these stories? the case i am thinking of was the one about the breast cancer gene, whether it could be patented. there were lots of scientific technicalities in that case. a lot of briefs by scientists. and patent lawyers. justice scalia wrote this interesting opinion in which he wrote, i am not competent to figure all this stuff out. all i know is the gene is a product of nature and the c-dna is not a natural product.
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that is good enough for me. how much did you guys become experts in genes and patent laws? >> not that much. i'm smiling at justice scalia's concurrence. it is such a rare expression of humility. [laughter] the court -- the justices are generalists, as are we, and it is the burden of the parties to make the justices understand all of the technicalities and the science. if they do not do a good job, it has an impact on the court. >> i would say we are not expert about anything, but the great
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thing about this beat -- i think the reason all of us enjoy it and the reason that you enjoy being a lawyer, it is a constant rotation of issues. you keep learning about things that you did not know about. that is what makes the job such a great job. there are all of these things that you are always learning about. >> i took some comfort from an actual scientist the day after the decision came down. the majority opinion had the quality of a seventh grader's book report. >> did anybody mention the concurrence? it was refreshing, three sentences saying i cannot figure this stuff out. >> it was one of the fun things to add. first of all, it is a hard
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topic. you can bring in lots of things that you know about the breast cancer issue, but having the supreme court justice say, i do not get it. we heard another justice quit, i almost wrote a graph that said, i get it. there is this dueling thing that goes on. many of us have the feeling that if we can include anything in a story that humanizes these folks, we are ahead. >> chief justice roberts contrasted the lack of knowledge at his fourth-circuit speech on saturday. he mentioned one of the lesser noticed opinions that involved the definition of the word defalcation -- he thought it sounded like the act of throwing a falcon out the window.
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the court became educated about the meaning of the word. and they ruled on it. >> in the same speech, someone asked him, what was his favorite case. he answered with a case that i had not heard about. it had to do with the definition of a vessel. does anybody report that decision? >> sure. [laughter] >> are you reading our stories? >> i think it was in the johnnie cochran school of reasoning -- if it floats, it is a boat. >> it came down early.
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people should realize that sometimes what is news has to do with what is in the competition. the ruling came pretty early. it was heard early in the term. there were some good cases these last couple weeks that got caught up in other things that would've gotten more attention if they did not, the same time as these big rulings on gay rights or racial policy. >> that opinion had pictures, too. >> i was surprised to learn in san francisco bay and seattle, a lot of people who live on these boats. they get electricity, they are stationary. it was a very important thing to them whether they were classified as a vessel or a house. there were a lot of people, it was very important decision to say what is the difference between a boat and a house that is on the water? >> the entire gaming industry was worked up about it because all these floating casinos -- the court went into great detail.
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actually. the court went into great detail. this thing had french doors instead of portholes. that was important to justice breyer. it was one of the very few cases which justice kennedy dissented. usually, you point to some provision in the constitution. john roberts made a vague reference to the 10th amendment. there is the 15th amendment that says the right to vote shall not be denied or abridged on account of race.
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congress shall have the power to force this to appropriate legislation. congress decided, how could that be unconstitutional? i thought the john roberts opinion may do very good political science commonsense argument. this is all based on data from the 1970's. it is outdated, it does not make any sense today. i thought it was very hard to say as a legal matter, why was that provision unconstitutional? >> the case that not all five of the conservatives subscribed to. the truth is that was part of it. they did not articulate for the five justice majority exactly what the standard was. that will be complicated going forward. >> in several of the cases last week, particularly in the doma case, justice scalia delivered quite an impassioned oral >> i think that we do probably all intellectually agree that they were splitting along the lines of how they might see the standing issue, but i also think it's and a more subtle signal that even the liberal justices are not ready at this point to say anything definitive about a national gay marriage rights. i thought that might be at work two.
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how long do you think that until they have to? >> i do not think they want to case back for a quickly. maybe 5, 10 years. i think the states are going to do more action before they are willing to bite it off. >> they struck down racial marriage bans when they were 16 marriages (-- 16 states left. when you did to states, the court will do the mopping up. >> that will be tough to get to because most of those states that don't have a now also have a constitutional amendment that makes it so that they can't. overturning those constitutional amendments, even in states that might want to do harderoing to be a lot than simply getting a law passed. >> also, federal courts may be willing to take on the
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constitution. >> i think that is what proponents of a nationwide constitutional rights to gay marriage want to do is find a federal court that would be as sympathetic as ninth circuit was and try to do ace -- do a case marching up that way. the inevitability is it will have to company supreme court. it will not come from the states. >> another thing that is so hard to guess on this is that the pace of the public opinion changes so fast that if it continues like this, you would think the opposition just starts to crumble because when this case was filed, there is a lot of people in the gay rights who thought this was a big mistake to take this issue in a federal court or give it up into the because you're going to lose. by the time, and the four years it took the case, the sentiment has so much change your there is a majority of americans now who support gay marriage, and only among the sort of 65 and above group still strongly oppose it. that is one of the really hard
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things, if that change continues at that rate, it may be faster than we would have guessed. , it will bed my own three or four years till it is up there because i think councils of caution, same-sex couples and state that a not allow gay marriage are going to be filing a ton of lawsuits in the next six months. some federal circuit is going to declare that the constitution does not permit these states to refuse them a marriage license, and the supreme court will have a hard time not taking the case. >> i think that is exactly right, and justice kennedy's opinion has a lot of were spared domayou have struck down and talked about equal protection and equal dignity of same-sexmarriage, -- couples, what is the definition, if some states say we're not going to allow the gay couple to marry, what is the
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justification for that fairly strong claim of equal protection? some judges are going to say, yes, you are right, this is an equal protection matter, and then it will come back up -- >> if you look at the scalia decision, he says that same thing. crisis of the lawrence against texas, how long is it going to be until we get gay marriage here? >> he is really the best friend of the gay-rights people. [laughter] >> because in chief justice john roberts says this is not about gay marriage. so they are laying that's like we are laying bets. >> scalia did something we had never seen before. in his dissent, he took the majority opinion and cross sell some words and basically substituted -- he sort of rewrote the case to fit the argument that the other side was making. basically sort of writing the opinion for them before the case was even happened. i do not think i've ever seen
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that. >> now, the chief did say, and along federalism in kennedy's doma majority, he took the federal piece of this era security reason the federal law had to fall is because it is a marriage -- marriage is a matter for the states. you can say that states do not want same-sex marriages, principals will say they do not have to have it. christ justice kennedy rejected the argument from the obama aministration to go with pure heightened scrutiny. it was not what the administration wanted or even so what some of the advocates wanted. the standards are crystal clear. equal protection, slightly , but not upregular to high tens. for any other audience be for what are they talking about. but for you all, you know this matters, and this is what will matter when it does come back. >> in both the voting rights act
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case and the doma case, it is stuff -- tough standard legal work. >> i agree with that. do any of you put that in your articles, or it's something that is only for such an insight audience that your general readership is not care? >> i said it was hard to look at constitutional provision at work doma decision. that federalism with some equal protection and a dash of due process. christ you think the same thing to be said about the voting rights case? if youing rights case, ask the average person, why was this part of the voting rights act unconstitutional, usually points to some provision in the constitution that says this law, john roberts made a vagrant -- reference to the tent the mimic, which basically said if things are not part of federal power, the 15th amendment says the
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right to vote shall not be denied or abridged on account of race, and then it says congress shall have the power to enforce this through appropriate legislation. commerce decided, how can that be unconstitutional? i thought the john roberts opinion may very good sort of political science, common sense argument, which is this is all based on data from the 1970's. it is old, it is outdated, it does not make any sense today. but i thought it was very hard to say as a legal matter why was that provision unconstitutional? >> it all comes down to a case that you all will rumor, the gurney case, then all all five of the conservatives subscribe to. there is no way that any of us will write into a story -- hey, they are not all on board with bernie. they actually did not articulate for the five justice majority exactly what that standard was. so that will become located going forward to for the power of congress.
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and several of the cases last week, but particularly in the an case, justice scalia delivered quite an impassioned oral dissents, more impassioned when you concede in the courtroom even than reading about it in the newspapers. john, you recently published a piece about justice scalia's oral dissents, although you focus on one from a couple of weeks ago. come morel dissents impassioned over the years, or is this the same scalia? like that is hard to know when he is more revved up or not. -- one in the courtroom this time when he dissented in doma, i believe he dissented for 30 minutes, and anthony , who read the opinion,
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scalia was on center stage for 11 minutes, dissenting in a dna case, where the majority said that it was ok when someone is arrested to take a dna swab, and he was firm is against that. , andis a genre of his actually ruth bader ginsburg this year showed that it was one of hers to. it is the way for the dissent to call attention to his or her opinion. justice scalia told me in 1988, when he did his major dissent in the independent counsel case and he had that wonderful line, sometimes the wolf comes to us in sheep's clothing, this wolf comes as a wolf. the reason he decided to dissent was that justin byron white had said, we have a practice that if we feel passionately about a dissent, we should do that. scalia went on for nine minutes
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back in 1988. each year, he does at least one. the doma one, if he could've pounded his fist on the mahogany bench, he probably would have. >> the great thing from being in the courtroom, one of the things you can't see, he has this great storyteller voice. he was going on and telling the story and he can be very sarcastic. he is really rolling along and then he finishes and he has written the majority opinion of the next case. the chief justice says, justice scalia will give the opinion and he had to recalibrate. he goes sorry about that. he tried to start again, and he was still using his sarcastic voice. [laughter] he had to, like, shake it off and start over.
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>> i wonder what my colleagues think about whether the justice who wrote the majority knows an oral dissent is coming. >> you know the answer, don't you, adam? >> i am not sure i do. >> they know now that somebody will be dissenting. we have learned over time that they think it is good manners to let the majority justice know that a dissent is coming. they do not know what is in it. justices ginsberg and scalia make their press statements available to the press, but that is something that somebody is reading, so it would be like tony read the majority. scalia saying, how dumb you are. that is the tone. >> these are people who live a life in which everybody thinks
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they are hilarious and wise. >> when justices read their opinions and their dissents, they are not reading the whole thing. they are reading a summary they have written or their clerks have written. it is about as close to spin as the justices can get. they are able to tell the public which parts they think are important and the nuances. there has been some discussion, senator durbin toward the end of the term asked the court to allow the broadcast of opinion announcements. a very unsuccessful campaign has gone on for decades to allow camera coverage of the arguments. he was focusing on the opinion announcements as a foot in the door.
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that is an interesting idea, and i think it would get rid of some of the objections that justices have about cameras, the dynamics of justices interacting. the problem is the court does not like the idea of opinion announcements being featured. they do not want lawyers citing the words of the opinion announcement instead of the opinion itself -- it is a summary and it oversimplifies things. there is something interesting about the separate entity of opinion announcements as far as the public access to that. i wish it was greater. >> the audio of that does become available at the end of the term.
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there is a real sense of drama, the chief justice gradually let you know where he is going. >> i thought there was something odd that justice scalia -- on tuesday, john roberts delivered the opinion striking down part of the voting rights act. ruth ginsburg says this is arrogance on the part of this court to strike down a law that has been passed overwhelmingly by congress. the four liberal justices dissent. the very next day, they strike down the defense of marriage act. justice scalia calls it job- dropping arrogance that we are overturning the decision of the congress and the executive in the defense of marriage act, a very popular law.
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well, who would vote against the defense of marriage act? pretty easy in the middle of the 1990's to vote for that. i am struck by how if justice scalia is talking, if anyone was there, they say, wait a minute. weren't you on that exact opposite side of that issue the day before? >> i like the form of reasoning that there is something you should be skeptical about because the voting rights act was passed 98-0 in the senate. >> justice alito wrote a very interesting dissent on the doma case, but did not announce it from the bench. did that have room for coverage in your stories? did you think it was worth writing about?
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it was only for himself. >> i certainly mentioned it. he stated clearly that he read the majority's opinion that the states should decide for themselves the definition of marriage. if that is what the majority was holding, then he agreed with that. he summed that up in a very nice and quotable way. >> speaking of justice alito, bob, you wrote about his behavior while justice ginsburg was reading her dissent in the title vii cases. he was shaking his head and appearing to roll his eyes. did you get any feedback on that? what made you decide to put that in the story? >> i got a little bit of feedback on that, yeah. [laughter] >> anybody roll their eyes? >> he has a hard time keeping a poker face. he squints and moves his head.
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you can tell during arguments if he thinks someone is making a point that he thinks is silly. he has a hard time looking ahead. i think the reason that it seemed relevant was that is sort of recalled the moment from the state of the union address in which president obama criticized the citizens united ruling and justice alito thought he was mischaracterized, and it was caught on tv. this is a guy who doesn't have a poker face. >> speaking of poker face, justice o'connor was in the court last week for some of the decisions. i was able to see her face across the room. she had a complete poker face. joan, you wrote a biography of her. how is she doing?
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>> she has on occasion used a cane. she is 83. she keeps a busy travel schedule. she is involved in her work and talks about alzheimer's, which her husband died of. she remains active and actually published a little book earlier this year. during the reading of the texas affirmative action case were picked up where her michigan ruling left a decade ago, she sat with her hands clasped and not showing her feelings at all. that was a 7-1 ruling that did not dismantle or hurt her majority opinion. a lot has yet to play out and
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how lower courts would interpret it. i tried to get an interview with her afterwards. she said, no. [laughter] she is the kind of person who will eventually say what she thinks about it. some of us remember after the 2007-2008 term when several of her majority opinions were undercut, she said two months later it that they have dismantled the opinions. how would you feel about that? i think eventually she will not be able to keep a lid on it. it is a matter of when. >> sometimes when you're justice o'connor speak, we really hear joan doing justice o'connor. [laughter] >> are you picking up a different accent writing a book on justice sotomayor? >> it is more of a political history than a biography the way the others were. this is a political history how we got the first latina on the court.
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tracing how she maneuvered herself to get on the district court in new york and her elevation to the second circuit and watching this ambitious woman. she came out with her own book earlier this year. it has been very helpful. it has been helpful to follow her around because she can draw a crowd like no other justice can. >> as long as we're talking about books, adam, here is your chance to talk about yours. >> my journal is philosophies. i thought what the world needed was a nice 15,000 word narrative that looks at the personalities
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that led to the decision made a few days ago. i finished it, i think, on sunday. it is being edited now. you can download on your kindle or ipad or other device on july 9. it costs $1.99. >> this is a bit longer than a brief. >> and a ton more fun. [laughter] >> anybody else working on a book at the moment? i do not want to leave anybody out. no. justice ginsburg turned 80 in march of this year. she seems frail, but there was a story in the "post" a few months ago about her personal trainer that some people in the audience may not have seen.
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>> she works i think about twice a week with a personal trainer. someone who works at the d.c. circuit and trains a lot of the judges. i think justice kagan works with him as well. justice ginsburg seems extremely dedicated to it. a real regular. i believe that he said that she can do 20 perfect push-ups. whether that is true or an advertisement for himself, we do not know. [laughter] there was no documentation of it. she takes care of herself after the health scares she has had.
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the question is always when she will be ready to leave the court and she doesn't give any of us an indication that the time has come. >> she is very sharp on the bench. when i started there, justice brennan and justice marshall -- they sort of sat quietly and rarely said anything. ruth ginsburg, almost every argument she would ask the first question and is really sharp with the question. if there are any fudges or misstatements, she will correct them and say it. she is always well prepared an extremely sharp in the questions. >> she was the second woman on the court. after a while, she was the only one. now there are three. adam, you wrote about the three women justices -- are they a voting block? >> there are 36 possible combinations of pairs of nine justices. the three pairs most likely to
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vote together are the three women on the court. they are in that sense a block. they're not about because they're female, but they are appointees of liberal democrats. in the term or the right is splintered in little bit, you saw the three of them very cohesive. any pair of those three women you put together they vote together a percentage of the time. >> stephen breyer is the fourth the democratic appointee of that crowd. >> in a series of fourth amendment cases, he flipped with scalia. scalia becomes the great proponent of the fourth amendment protections in taking dna our blood from dui's.
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in letting frankie the drug dog sniff around your house. in all of those cases, breyer takes a conservative side. >> he had been original member of the sentencing commission and always had an interest for the law. he helped write a lot of criminal law. this is the term where we saw that background emerge much more than usual. >> do you think there is anything in his personal life that might have driven that? [laughter] >> i will let someone else answer that. somebody answer that. >> i'm sure it has nothing to do with -- although there is that old adage that a conservative is a liberal who has been mugged. justice breyer had the misfortune to have his home burglarized and to be attacked by a man with a machete when on vacation.
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>> we have talked a little bit about the other two women, but not yet about justice kagan. she finished her term on the court. is there anything more to say about her after several years? is she gaining her stride? did that happen two years ago? does she have more influence in the court? >> i think all of us who watch the court and she is terrific. she is a real talent on the law from the very beginning. she asks good questions and has a great sense of timing as to when to ask a question. she is a terrific writer. she is as good as it gets on writing. whether a dissent or majority, she writes clearly and strongly. she is quotable. we are always anxious for anyone who is quotable. [laughter] she is terrific. >> she's a very good shot. she has been hunting in wyoming. took down a white-tailed doe with a single shot. >> i like that justice scalia said she could've done that in his driveway.
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>> she is an amazing speaker. she likes the dramatic form. i saw her and chief justice roberts recently in indianapolis. the chief was going to be the keynote speaker and she was there to introduce him. he is a superb speaker. he went up after her and said, i have to follow that? that was really revealing. she is something. >> one example with justin kagan's terrific writing, there was a case that did not get much attention on the 24th of june. it was the day camp versus the united states and how to categorize prior convictions for sentencing.
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she was talking about the subcategories of crime. she resorted to the include -- think of colonel mustard with the candlestick in the conservatory. this is not what you usually get in the supreme court decision. [laughter] justice alito in dissent put in the footnote where he disagreed with her interpretation of clue. the board game clue does not provide sound or legal guidance. [laughter] in that game, it matters whether colonel mustard did it. in real life, the colonel would almost certainly not escape conviction simply because the jury could not agree on the blunt instrument he used to commit the murder.
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a humorless response to a funny >> he was going along. >> that was the written equivalent of an eye roll. >> she slipped another one into an opinion. i wonder if any of you caught it? it was a case about preemption of local los angeles court regulations. one of the regulations was a truck has to have a placquered with a phone number for reporting environmental safety concerns. she put you have seen it. "how am i driving? call 867-5309." i see some smiles in the audience. i watched it on youtube.
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there is a song, i am told, by power band tommy tutone called "867-5309." >> i think your version of younger and ours are two different things. [laughter] who thinks that justice kagen knew this and who thanks one of her law clerks slipped it in? >> i'll go for the law clerk because she said a couple days ago in an interview at the aspen institute she, it was pointed out how she brought up mortal combat on an oral argument on violent video games and she asked one of her clerk, i need an eye donic video violent video game. and so one of them volunteered that to her. so i'm not sure how much she had played it and how much a clerhe